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SCHOOL  OF  LAW 


ornBooft  ^tvite 


Of  elementary  treatises  on  all  the  principal  subjects  of  the  law.     The 
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Bound  in  American  Law  Buckram. 


1.  Norton  on  Bills  and  Notes.      (3d Edition.) 

2.  Clark's   Criminal  Law.      (2d  Edition. ) 

3.  Shipman^s  Common- La7i>  Pleading.      (2d Edition.) 

4.  Clark  on   Contracts.      (2d  Edition  ) 

5.  Black's  Constitutional  Law.      (2d Edition.) 

6.  Fetter  on  Equity. 

7.  Clark  on   Criminal  Procedure. 

8.  Tiffany  on  Sales. 

9.  Glenn's  Interfiational  Law. 
ro.  Jaggard  on   Torts.      (2  vols.) 

11.  Black  on  Interpretation  of  Laws. 

12.  Haie  on  Bailments  and  Carriers. 

13.  Smith's  Elementary  Law. 

14.  IlaiC  on  Damages. 

15.  Hopkins  on  Real  Property. 

16.  Hale  on   Torts. 

17.  Tiffany  on  Persons  and  Domestic  Relations. 

18.  Croswell  on  Executors  and  Administrators. 

19.  Clark  on   Corporations.      (2d  Edition.) 

20.  George  on  Partnership. 

21.  Shipman  on  Equity  Pleading. 

22.  McKelvey  on  Evidence.      (2d  Edition.) 

23.  Barrows  on  Negligence. 

24.  Hughes  on  Admiralty. 

25.  Eaton  on  Equity. 

26.  Tiffany  on  Principal  and  Agent. 

27.  Gardner  on   Wilts. 

28.  Vance  on  Insurance. 

29.  In  person  on  Public   Corporations. 

30  I/u^ht's  on  Federal  Jurisdiction  and  Procedure. 

31.  Childs  on  Suretyship  and  Guaranty. 

In  preparation:     Handbooks  of  the  law  on  other  subjects 
to  be  announced  later. 

^uBfis^cb  an^  for  eaic  Bj? 

"^ts^  (puBfiefin^  Co.,  ^f.  (jpduf,  (glinn. 

C5855a 


HANDBOOK 


OP  THE 


LAW  OF  EVIDENCE 


SECOND  EDITION,  REVISED 


By  JOHN  JAY  McKELVEY,  A.  M.,  LL.  B. 

Of  the  New  York  Bar; 
Author  of  "Common  Law  Pleading,"  etc. 


ST.  PAUL,  MINN. 

WEST  PUBLISHING  CO. 

1907 


T 


GOPYBIGHT,    1897, 
BY 

WEST  PUBLISHING  CO. 

COPYBIGHT,    1907, 
BY 

WEST  PUBLISHING  CO. 


m'kelv.ev.(2d  ED.) 


PREFACE  TO  SECOND  EDITION. 


At  the  request  of  the  pubHshers,  the  author  has  endeavored 
to  find  time  for  a  re-examination  of  the  subject  of  Evidence, 
and  a  revision  of  his  treatment  of  it  as  found  in  the  first  edi- 
tion of  this  work  prepared  in  1897. 

The  principles  do  not  change  materially  in  a  decade,  but 
added  experience  and  a  different  point  of  view  may  m  some 
instances  result  in  a  more  satisfactory  statement  of  them. 

The  changes  in  this  second  edition  are  not  many,  although 
there  have  been  re-arrangement  and  additions  in  most  of  the 
chapters  and  some,  notably  the  chapter  on  Judicial  Notice, 
which  has  been  re-written,  and  the  chapters  on  Burden  of 
Proof,  Presumptions,  Admissions  and  Writings,  which  have 
been  enlarged,  present  the  respective  subjects  of  which  they 
treat  in  somewhat  different  form  from  the  corresponding  chap- 
ters of  the  first  edition. 

The  aim  has  been  to  avoid  a  compilation  of  cases,  and  while 
many  thousands,  decided  since  1897,  have  been  examined,  com- 
paratively few  have  been  added  as  citations. 

The  purpose  of  the  work  is  now,  as  it  was  in  the  former 
edition,  to  give  a  statement  of  principles  with  illustrations  of 
their  application,  and  some  discussion  of  the  manner  of  their 
development;  the  work  will,  therefore,  serve  better  one  who 
seeks  light  upon  the  law  of  Evidence  viewed  as  a  science  than 
one  who  seeks  a  precedent  for  some  particular  case. 

The  author,  therefore,  again  disclaims  any  attempt  to  pre- 
sent the  law  of  all  the  States  or  of  any  one  of  them,  and  has 
cited  cases  from  the  different  jurisdictions  indiscriminately, 
looking  only  to  their  value  as  illustrations  of  the  application  of 
those  principles  which  seem  to  him  to  be  at  the  foundation  of 
an  intelligent  understanding  of  the  law  of  Evidence. 

J.  J.  M. 

Dated  New  York,  June,  1907. 


686479 


PPEFACE  TO  FIRST  EDITION. 


Tli'e  present  treatise  is  the  cmbodJmcnt  of  an  attempt  to  re- 
state the  j^rinciples  of  the  law  of  evidence  in  a  maruicr  easy 
of  ajmi>rehension  for  the  student,  and,  for  the  practitioner,  easy 
of  application,  if  the  result,  while  avoiding  the  mea^erness 
of  Stephen's  Dig^est,  on  the  one  hand,  and  the  unwieldy  fullness 
of  detail  characteristic  of  some  of  the  larj^er  works,  (m  the 
other,  possesses  a  reasonable  de;<ree  of  clearness,  it  will  have 
acomplished  v>mewhat  of  that  which  was  intended. 

The  ajjph'cation  of  the  principles  of  the  law  of  evidence  has 
become  so  lar^c;  as  well  as  so  important  a  part  of  the  work  of 
the  courts,  and  the  pressure  under  which  rjuestions  relatinj^  to 
such  appliaition  must  l>e  determined  has  l>ecome  so  great, 
that  judges  and  lawyers  must  neefis  have  a  systematic  idea 
and  ready  knowledge  of  the  main  principles  of  the  law,  in 
order  to  meet  the  emergencies  of  their  work.  Kor  every 
instance  where  time  is  obtainable  to  examine  and  discuss  at 
length  a  r|iK'sfioii  of  evidence  arising  in  the  courts,  there  are 
a  l)inidr<-d  inslances  in  which  quick  decision  is  imfx^rative. 

The  conditions  und(;r  which  the  courts  of  to-day  have  to  deal 
with  the  law  of  evidence,  coupled  with  the  extraordinary 
volume  of  business  transacted  by  them,  and  the  consequent 
multiplication  of  f|u<stions  involving  the  apjjiicalion  of  the  same 
principles,  have  resulterl  in  a  tenrlency  to  simplify  an^l  syste- 
matize the  statement  of  the  law,  and  tf>  get  rid  of  much  of  the 
old  time  verbiage,  as  well  as  of  many  obsolete  ideas.  The 
courts  are  to  day  more  a  p;irt  of  the  peojjie,  and  in  touch 
with  their  s(K-i;il  and  business  life.  They  are,  by  reason  of  thi.s, 
inorf  prone  to  deal  with  the  affairs  of  the  people  in  accordance 
with  the  usual  business  and  sf^-ial  statidards,  and,  in  matters 
of  evidence  especially,  to  rely  upon  tlu-  methods  of  thought 
and  i^rooesses  of  reasoning  which  foim  tin;  ground  for  action 
aiiiotit^  business  men. 

The  form  of  treafmerit  of  the  subject  which  has  been 
adopted  in  the  following  pages  fmds  its  reason  quite  as  much 

(vll) 


Viii  PREFACE. 

in  the  tendency  above  referred  to  as  in  the  desire  to  make  the 
work  of  especial  use  to  students. 

Acknowledgment  is  due,  and  freely  given,  to  that  admirable 
collection  of  cases  on  the  subject  of  evidence  compiled  by  Prof. 
Thayer,  of  the  Harvard  Law  School,  upon  which  the  author 
has  drawn  for  very  many  of  the  illustrations  cited,  and  to  which 
he  has  very  generally  referred  for  the  early  cases.  If  the 
cases  cited  be  found  to  be  fewer  than  in  most  works  on  the 
same  subject,  it  may  be  ascribed,  in  part  at  least,  to  the  fact 
that  an  endeavor  has  been  made  to  avoid  massing  together 
quantities  of  cases  having  a  similarity  to  each  other,  but  not 
relating  specificallv  to  the  question  under  discussion. 

J.  J.  M. 

November  23,  1897. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

INTRODUCTORY. 
Section  Page 

1-3.     Place  of  Evidence  in  tiie  Law 1-5 

4-5.     "Evidence"    and    the    "Law    of   Evidence"    Distin- 

^islied    and    Defined 5-8 

6.  Origin  of  tlie  Law  of  Evidence 8-10 

7.  Functions  of  Court  on  a   Trial 11-14 

8.  Rules  of  Evidence  Secondary  to  the  Pleadings  and 

Rules  of  Substantive  Law 14-16 

9-10.     Judicial  Notice  and  Admissions  as  Factors  in  Ar- 
riving at  the  Facts  of  a  Case 1&-17 


CHAPTER  n. 

JUDICIAL  NOTICE. 

11-12.     The  Doctrine  in  General 18-19 

13.     Effects   Produced  by   the  Application  of   the  Doc- 
trine      19-21 

14-15.     Facts  Judicially  Noted  in  Relation  to  Proof 21-25 

16.  The  Doctrine  Both  Mandatory  and  Permissive 25-27 

17.  Facts  Required  to  be  Noticed 27-28 

18.  Reasons  for  the  Rule 28-29 

19.  By    Statute 29-31 

20.  By   Common   Law 31 

21-24.     Governmental    Matters 31-^^ 

25.     Phenomena  of  Nature 42-44 

25%.     Facts  Related  to  Lives  of  Mankind 44-53 


CHAPTER  in. 

QUESTIONS  OF  LAW  AND  QUESTIONS  OF  FACT. 

26.  In    General 54-55 

27.  Questions  of   Law  Defined 55-58 

28.  Questions   of  Fact  Defined 58 

29.  Province  of  Court  and  Jury 59-G5 

m'kelv.ev.(2d  ED.)  (ix) 


TABLE   OF   CONTENTS. 

CHAPTER  IV. 

BURDEN  OF  PROOF. 

Section  P^se 

30-31.     Burden  of  Proof  and  Burden  of  Proceeding 66-GS 

32.  Burden  of  Proof  Never   Shifts 6&-T3 

33.  Negative  Allegations  and  Burden  of  Proof 73-75 

34.  Verdict  in  Accordance  with  Burden  of  Proof 75-76 

35.  Burden  of  Proceeding  may   Shift 7(>-77 


CHAPTER  V. 

PRESUMPTIONS. 

36,  In    General 78-80 

37.  Presumptions    as    Inferences 80-82 

38-39.     Presumptions  as  Rules  of  Lavt^ 82-83 

40.  Rules    of    Equivalents 83-86 

41-42.     Prima  Facie  Rules  or  Presumptions — Death 86-90 

43.  Ownership  of  Personal  Property 90 

44.  Legitimacy    90-91 

45.  Wife  Committing  Crime  in  Presence  of  Hus- 

band         91-92 

46.  Capacity  of  Infants  to  Commit  Crime 93 

47.  Conversion    93-94 

48.  Receipt  of  Letter 94-95 

49.  Conclusive  Rules  or  Presumptions 95-96 

50.  Title  to  Land  by  Prescription 9G-97 

51.  Legal  Origin  of  Custom  97-99 

52.  Capacity  of  Infants  to  Commit  Crime 99 

53.  Spurious    Presumptions 99-101 

•54.  Presumption  of  Sanity 101-104 

55.  Presumption  as  to  Contributory  Negligence.  ..  .104-105 

56.  Presumption   of  Intent lOG-107 

57.  Presumption   against   Change 107-108 

58.  Presumption  as  to  Law  of  Another  State 108-112 

69.  Presumption  of  Regularity  and  Legality 112-113 

60.  Presiunption    of    Innocence 113-114 

61.  Prosnniption  of  Survivorship 114^115 

62.  Presii nipt  ion  of  Knowledge  of  the  Law 116 

C3.     Contlicting   Presumptions llC-117 


TABLE    OF   CONTENTS.  ^ 


CHAPTER  VI. 

ADMISSIONS.  p^^^ 

Section  118-119 

64.  Admissions    Defined iiq_l'>4 

'  65.  Direct   and  Indirect  Admissions •  • ;  ^24,125 

66.  Admissibility    106-128 

67-68.  Admissions  of   Parties io«_14a 

69-76.  Admissions  of  Third  Persons •••••••■  ''n 

77-79.  Admissions  Pending  Negotiations  for  Compro-^^^^^^ 

mise   142-145 

80.  Civil  and  Criminal  Cases ^^ 

81.  Proof  of  Admissions 146-147 

82.  Effect  of    Admissions 


CHAPTER  VII. 

CONFESSIONS. 

T.  ^     A  ... .148-150 

83.  Confessions    Defined ir:n_i52 

84.  Admissibility— Must  be  Voluntary i  roll -.^ 

85-86.     Court  to  Determine  Whether  Voluntary 155 

87.  Judicial    Compulsion 155-ri7 

88-91.  Threats  or  Inducements •  • irsQ-i^^q 

92.  Confessions  Under  Influence  of  Liquor ]llJu{o 

93.  Evidence  in  Former  Proceeding -^-^^ 

94  Whole  Confession  Mu^t  be  Introduced 16O-I6I 


95 


Confessions   may  be  Explained.  -,r^  lao 

96.  Evidence  Obtained  as  Result  of  Confession 161-lb- 

97.  Implied    Confessions 


CHAPTER  Vm. 

MATTERS  EXCLUDED  AS  UNIMPORTANT,  OR  AS  MISLEAD- 
ING, THOUGH  LOGICALLY  RELEVANT. 

98.  Logical  Relevancy  as  Affecting  Admissibility. ....  .165-166 

99.  Distinction  Between  Logical  and  Legal  Relevancy  .         166 

100.  Logical   Relevancy  the   Main   Ground  of  Admissi-^^^^^^ 

101.  RiilV  Excluding  Unimportant  and  Misleading  Mat-        ^^^ 

102.  Difficulty 'of  Classification  of  Matters  Excluded  Un-      ^_^^^ 

der    Rule    Given 


Xii  TABLE   OF   CONTENTS. 

Section  P^f 

103.     Res  Inter  Alios  Acta 1G9-171 

104r-105.     Relation  of  Other  Sales  to  Proof  of  Value 171-175 

106.  Collateral  Acts  Inadmissible  Upon  Question  of  Neg- 

ligence     175-170 

107.  When   Admissible 177-178 

108.  Subsequent  Acts  of   Precaution 178-179 

109.  Other  Acts  of  Defendant 179-180 

110.  Effect  of  Same  Act  on  Other  Persons 181 

111.  Proof  as  to  Dangerous  Character  of  Obstruction  or 

Excavation    181-183 

112.  As  to  Defective  Machinery  or  Appliance 183-185 

113.  Proof  as  to  Kinds  of  Appliances  Used  by  Others  in 

Same    Line 186-187 

114.  Evidence  of  One  Crime  Not  Admissible  to  Prove 

Another 187-188 

115-115^.  Proof  as  to  Intent,  Motive  or  Physical  or  Mental 

State    189-192 


CHAPTER  IX. 

/ 

CHARACTER. 

116.  General  Rule  as  to  the  Exclusion  of  Character  Evi- 
dence     193-196 

117-118.     Rule  in  Criminal  Cases 196-199 

119.  Character  as  a  Fact  in  Issue 199-202 

120.  Character  as  an  Evidentiary  Fact 203-204 

121.  Character  of  Witness  for  Veracity 204-205 

122.  Character  When  Material— How  Proved 205-207 

123.  Particular  Acts  as  Evidence  of  Character 207-209 

124.  Opinion    Inadmissible 210 

12.").     General  Reputation — Proved  by  Direct  Testimony.  .211-212 

126.  Reputation  as  to  Act  Charged  Inadmissible 212-213 

127.  General  Reputation  Must  be  That  Which  a  Person 

Rears    in   His   Own    Community 213-214 

128.  Impeaching  Evidence  Introduced  First 214-215 


CHAPTER   X. 

OPINION  EVIDENCE. 


12JV-1.30.     Matter  of  Opinion   Distinguished  from   Matter   of 

Fact    216-218 

131.  General  Rule  as  to   Opinion  Evidence 218-219 

132.  Apparent  Exceptions  to  General  Rule 220-222 


TABLE    OF   CONTENTS.  XUl 

Section  Page 

133.  Disting:uished  from  Expert  Evidence 222-224 

134.  Opinion  Evidence  Proper — Reason  for  Admission.  .224r-227 

135-136.     Expert  Opinion  Evidence 228-230 

137-138.     Distinction    Between     "Expert     Testimony    as     to 

Facts"  and  "Expert  Opinion" 230-235 

139.  Matters  Forming  Subject  of  Expert  Opinion 236-240 

140.  Hypothetical    Questions 240-243 

141.  Damages  as  the  Subject  of  Opinion  Evidence 243-245 

142-143.     Sanity  as  the  Subject  of  Expert  Opinion 246-248 

144-145.     Handwriting  as  the  Subject  of  Expert  Testimony.  .249-252 


CHAPTER  XI. 

HEARSAY. 

146.  Statement  of  General  Rule 254-2.56 

147.  Apparent  Exceptions — Statements  in  Issue 257 

148.  Statements  the  Making  of  which  is  Circumstan- 

tial   Evidence 258-263 

149.  Market  Value  and  Reputation 263-266 

150.  Real  Exceptions  to  General  Rule  Against  Hearsay 

— Statements  Admitted  Because  of  the  DiflB- 

culty  of  Other  Proof 267 

151.  Declarations    of    Testator    as    to    Contents    of 

Will    267-269 

152.  Declarations  Concerning  Ancient  Ownership . . .  269-271 

153.  Matters   of  Pedigree 271-275 

154.  Kinds  of  Declarations  Admissible 275-276 

155.  By  Whom  Declarations  Must  be  Made 276-279 

156-157.  Proof   as   to   Declarant's   Connection   with 

Family    279-280 

158.  Extent  of   Rule 280 

159.  Admissibility  as  Affected  by  Time  of  Mak- 

ing Declarations 280-281 

160.  Proof  of  Age  of  Person 281-282 

161.  Matters  of  a  Public  Nature 282-283 

162.  Statements  Admitted  Because  of  Circumstances 

Giving  Them  Special  Reliability 283-284 

163.  Declarations  Made  Under  Oath 284-285 

164.  Conditions  Under  Which  Declarations  Un- 

der Oath  are  Admissible 285-288 

165.  Identity  of  Parties 288-290 

166.  Disabilities  Which  are  Recognized 291-293 

167.  Manner  of  Proof  of  Declarations 293-295 

168.  Precise  Language  Not  Necessary 29.5-298 

169.  Extension  of  Rule 298-299 


XIV 


TABLE    OF   CONTENTS. 


Section 
170. 

171. 

172. 

173. 

174. 

175. 

176. 

177. 

178. 

179. 

180. 

181. 

182. 

183. 

184. 

185. 

186.. 

187. 

188. 

189. 
190. 
191. 

192. 

193. 
194. 
195. 
196. 
197. 
198. 
199. 
200. 
201. 


202-204. 

2a5. 

200-207. 

208. 

209. 
210. 


Page 

Declarations  Made  in  tlie   Regular  Course   of 

Business    299 

Sliop-Book   Rule 301-302 

American   Doctrine 302-303 

Entries  Must  be  Original 30.3-305 

Eule  Confined  Strictly  to  Shop  Books 305-306 

Death  Not  Essential  to  Admissibility 306 

Authentication  of   Entries 306-307 

Extension  of  Rule 307 

Rule  Restricted  as  to  Amount  Involved. . .  .307-.308 
Scope  of  Proof 308-309 

Entries  Made  by   Strangers 30'J-310 

As  to   Oral   Declarations 310-311 

Meaning  of  "Regular  Course  of  Business".  .311-312 

Must  be    Contemporaneous 312-313 

By  Whom   Entries  Made 318-314 

What   Disabilities   Sufficient 314-315 

Declarations  Against  Interest 315-316 

Declarations  Must  have  been  Spontaneous. 316-317 
Must  be  Against  Pecuniary  or  Proprietary 

Interest    318-319 

Death   a   Prerequisite 320 

Kind  of   Declarations  Admitted 320-322 

Scope  of  Declaration  as  Evidence 322-323 

Admissibility    to    be    Determined    by    the 
Court    323 

Dying   Declarations — Ground   of    Admissibility         324 

Expectation  of  Immediate  Death 325 

In   What   Cases    Admissible 326-327 

By  Whom  Must  have  been  Made 327-328 

To  What  Declarations  Must  Relate 329 

Competency     329-330 

Form  of  Declaration  Immaterial 330-331 

Court  to  Determine  Admissibility 331-333 

Matters  of  Public  or  General  Interest — General 

Rule    333-334 

Distinction    Between    Public    Interest    and 

General   Interest 334-339 

Two  Kinds  of  Hearsay  Admissible 339-340 

Public  Documents   and   Books 340-343 

Declarations    Which    are    Part    of    the    Res 

Gestae    343-345 

Must  be  Contemporaneous 34.5-347 

Cases  Not  Belonging  Under  this  Head 347-349 


TABLE    OF   CONTENTS. 


XV 


CHAPTER   Xn. 

WITNESSES. 

Section  Page 

211.     Origin  of  Rules  Excluding  Witnesses 350-352 

-  212.     Persons  Formerly  Excluded  as  Witnesses 352 

213.  Infidels    and   Atheists 352-355 

214.  Parties  to  the  Suit 355-356 

215.  Husband  or  Wife  of  Party 356-^58 

216.  Persons   Pecuniarily  Interested 358-359 

217.  Naturally   Incapacitated  Persons 359-361 

218.  Persons   Guilty  of  Crime 361-362 

219.  Certain  Special  Cases  of  Disqualification 362-366 

220-221.     Privilege — Distinguished    from    Disqualification 366-368 

222.  Privilege  of  Accused  Persons 368 

228.  Inference  from  Failure  to  Testify 368-369 

224.  Waiver   of   Privilege 370-371 

225.  Privilege  as  to  Particular  Subjects 371 

226-228.  State    Secrets 372-373 

229.  Self-Incriminating    Matters 373-375 

230.  Husband  or  Wife  of  Witness  Protected        375 

231.  How    Privilege  Claimed 376 

232.  Waiver   of   Privilege 376-377 

233.  Remedy  in  Case  of  Denial  of  Privilege        378 

234.  Inference  from  Exercise  of  Privilege.  .378-380 

235.  Privileged  Matter  to  be  Determined  by 

Court    380-381 

236.  Professional    Communications 381-383 

237.  When  Relation  of  Attorney  and  Client 

Exists     3S3-.384 

238.  What  Included  in  Privileged  Matters.  .384-385 

239.  Inference  from  Exercise  of  Privilege.  ,         386 

240.  Consent  of  Client 386 


CHAPTER  Xni. 


EXAMINATION  OF  WITNESSES. 


241. 
242. 
243. 
244. 
245. 

246. 


Ordinary   Method  of  Examination 387-388 

Exclusion  of   Witnesses 389-3!;K) 

Witness  to  Testify  Orally 390-391 

Refreshing   Memory   of  Witness 391-394 

Admissibility  of  Papers  Used  to  Refresh  Recol- 
lection      395-396 

Deception  of  Court  by  Witness 396 


Xvi  TABLE    OF   CONTENTS. 

Section  Page 

247.  Direct    Examination : 396-397 

248.  Leading   Questions 397-398 

249.  Application  of  Rule 398 

250.  In  Case  of  Hostile  Witness 398-399 

251-253.     Impeaching  One's  Own  Witness 400^02 

254.  Exception  to  Rule 402-403 

255.  Impeaching  Testimony  of  Adopted  Witness 404 

256.  Direct  Examination  of  Defendant's  Witness 404-405 

257.  Cross-Examination   405-407 

258.  Scope  of  Cross-Examination 407-409 

259.  Scope  Unlimited  in  Respect  to  Credibility 409-410 

260.  Leading  Questions  on  Cross-Examination 410-411 

261.  Self-contradiction    411-413 

262.  Re-examination    413 

263.  Purpose  of  Re-examination 413-414 


CHAPTER  XrV. 

WRITINGS. 

264.  Double  Character  of  Writings 415-416 

265.  Physical   Objects  as   Evidence 416-418 

266.  Illustrative    Evidence 418-420 

267.  Pictorial  Evidence  as  Original  Evidence 420-421 

268.  Authentication     421^22 

269.  Materiality    422-423 

270.  Accessibility   424 

271.  Writings  in  Narrow  Sense 425 

272.  Best  Evidence  Rule 425-429 

273.  Original    Documents   Required 429-430 

274.  When  Secondary  Evidence  Admissible 430-433 

27.5.  Kinds  of  Secondary  Evidence 4.3.3-434 

276.     F*rodnction   of    Documents 434-435 

277-279.     Authentication      of      Documents — Attested     Docu- 
ments     435-436 

280-281.            When  Proof  by  Attesting  Witnesses  Excused .  .  .437-438 
282-283.            Kind  of  Evidence  Necessary  in  Absence  of  At- 
testing  Witnesses 438-439 

284.  Nature  of  Proof  Required  from  Attesting  Wit- 

nesses              4.3<) 

285.  Unattested    Documents 439-440 

286.  Exreptions  to  Rule  Requiring  Proof  of  Execu- 

tion     440-444 

287-288.     Proof   of   Handwriting 444_445 

289.  By  One  who  has  Seen  the  Person  Write 445-447 


TABLE    OF   CONTENTS.  XVll 

Section  ^^^® 

290.  By  One  Familiar  with  the  Writing 447^48 

291.  By  the  Opinions  of  Experts 448 

292.  By  Comparison  of  Hands  by  Jury 449-451 

293.  Evidence  Affecting  the  Contents  of  Documents 451-453 

294.  Reason  for  Rule 454-^55 

295.  Validity  of  Instrument  Questioned 455-456 

29'6.  Collateral    Oral  Agreements 456-457 

297.  Writing  a  Mere  Memorandum 457 

298.  Oral  Evidence  of  Custom _     4.58 

299.  Writing  Brought  in  Issue  Collaterally 458-459 

300.  Evidence  as  to  Alterations 459-461 

301.  Interpretation   of   Documents 462-464 

302.  Receipts    464-465 


CHAPTER  XV, 

DEMURRERS  TO  EVIDENCE. 

303.  Definition     ^  466 

304.  When  Joinder    Compelled 467-468 

305-306.     Final  Form — Every  Inference  Deemed  Admitted. .  .468-473 

307.     Admissibility  of  Evidence  Not  Determined 473 

m'kelv.ev.(2d  ED.) — b 

t 


% 


HANDBOOK 

OF  THE 

LAW   OF   EVIDENCE. 

SECOND  EDITION. 


CHAPTER  I. 

INTRODUCTORY. 

1-3.     Place  of  Evidence  in  the  Law. 

4-5.     "Evidence"  and  tlie  "Law  of  Evidence"  Distinguished  and  De- 
fined. 

6.  Origin  of  the  Law  of  Evidence. 

7.  Functions  of  Court  on  a  Trial. 

8.  Rules  of  Evidence  Secondary  to  the  Pleadings  and  Rules  of 

Substantive  Law. 
9-10.     Judicial  Notice  and  Admissions  as  Factors  in  Arriving  at  the 
Facts  of  a  Case. 


PLACE  OF  EVIDENCE  IN  THE  LAW. 

1.  A  law  is  a  rule  of  human  action. 

2.  Tlie  law,  as  a  system,   consists  of  a  large  number  of  such 

rules,  which  have  had  their  origin  in  universal  recog- 
nition, in  the  decisions  of  courts,  the  action  of  the 
sovereign  poxeer,  or  the  action  of  legislative  bodies. 
They  may  be  separated  into  tw^o  classes: 

(a)  Rules  of  substantive  law,  which  prescribe  or  define  the 

rights  and  obligations  of  men; 

(b)  Rules  of  adjective  law,  which  relate  to  the  means  of  en- 

forcing rights  and  obligations. 

3.  The  law  of  evidence  is  a  part  of  the  adjective  law. 

The  Law  as  a  Body  of  Rules. 

A  clear  understanding  of   the   relation   of  any  particular 
branch,  such  as  the  law  of  evidence,  to  the  main  body  of  the 

M'KELV.EV.(2d  ED.")— 1 


2  INTRODUCTORY.  (Ch.  1 

law.  depends  upon  a  proper  conception  of  what  law  is.  A 
commonly  accepted  definition  of  "law"  is,  "A  rule  of  human 
action  prescribed  and  promulgated  by  sovereign  authority,  and 
enforced  by  sanction  of  reward  or  punishment."  ^  This  is 
not  an  accurate  definition  of  the  law  as  a  whole.  The  law,  as 
a  part  of  the  social  system  under  which  we  live,  is  made  up  of 
a  vast  number  of  rules  of  human  action.  Not  all  of  them  have 
been  prescribed  and  promulgated  by  sovereign  authority.  On 
the  contrary,  many  have  found  their  origin  in  certain  qualities 
of  the  human  mind  common  to  all  mankind,  and  have  been  es- 
tablished by  the  voluntary  recognition  which  they  have  received 
at  the  hands  of  all  members  of  the  human  race.  These  rules 
are  those  which  relate  to  man's  fundamental  rights  respecting 
his  own  person  and  property. 

Beginnings  of  the  Substantive  Lazv. 

Wherever  the  human  race  has  existed,  and  under  whatever 
conditions, — whether  it  has  been  as  some  savage  tribe  in  the 
heart  of  Africa,  or  as  the  most  enlightened  community  of  mod- 
ern times, — the  distinct  personality  of  its  members  has  always 
been  prominent.  Man  is,  above  everything,  an  individual. 
However  he  may  combine  for  protective,  social,  or  commercial 
purposes,  it  is  the  distinct  personality  of  the  individual  which 
is  seen  in  all  the  relations  which  are  established. 

In  this  fact,  that  man  is  an  individual  complete  in  himself, 
and  not  a  component  part  of  some  larger  personality,  lies  the 
idea  which  distinguishes  between  "mine"  and  "yours" — the 
idea  of  ownership.  This  idea,  implanted  in  man  as  a  part  of  ■ 
his  nature,  is  at  the  basis  of  all  law.  Upon  it  the  whole  sys- 
tem rests.  Rules  which  have  from  the  inception  of  the  humr.n 
race  governed  human  action  are  developments  of  this  idea. 
These  rules  made  up  a  large  part  of  the  law  of  primitive  peo- 
ples. They  were  rules  which  expressed  general  rights  with  re- 
spect to  person  and  property,  broad  principles  which  needed  no 
lawmaking  power  to  establish  them,  but  which  were  universally 
recognized  as  necessary  to  the  existence  of  any  intercourse  be- 
tween individuals. 

I  have  a  right  to  defend  my  person  from  injury,  and  to  en- 
joy, without  interference,  my  property.     This  is  because  they 

1  Best,  Ev.  5  1. 


§§  1-3)  PLACE    OF   EVIDENCE   IN    THE    LAW,  3 

are  mine ;  because,  from  the  relation  in  which  they  stand  to 
me,  the  mind  conceives  in  respect  to  them  the  idea  of  owner- 
ship. Stated  in  the  form  of  rules,  we  might  say,  (1)  every  per- 
son may  defend  his  person  from  injury ;  (2)  every  person  may 
enjoy  his  property  without  interference.  These  are  rules  of 
human  action  everywhere  recognized  and  relied  upon.  They 
are  laws,  and  were  in  the  beginning  the  law.  Perhaps  it  was 
not  long  before  they  were  qualified,  explained,  amplified,  and 
developed  by  means  of  numerous  other  rules,  but  in  the  be- 
ginning they  constituted  the  law. 

Development  of  the  Substantive  Lazv. 

It  certainly  could  not  have  been  long  after  intercourse  be- 
tween human  beings  began  before  the  question  arose  as  to 
what  makes  property  A.'s,  instead  of  B,'s,  and  undoubtedly 
general  recognition  of  certain  rules  as  to  the  ownership  of 
property  soon  came  about.  For  instance,  it  was  probably  not 
long  disputed  that  what  A.  subdued  from  a  wild  state,  or  re- 
duced to  his  possession,  or  made  with  his  hands,  belonged  to 
A.,  in  preference  to  B,  It  may  soon  have  become  established 
that  if  A.,  by  gift  or  exchange,  put  B.  in  possession  of  that 
which  had  formerly  been  his  (A.'s),  it  then  became  B.'s,  in 
preference  to  C.'s.  It  must  soon  have  been  recognized  that  A.'s 
right  to  defend  his  person  from  injury  w^as  qualified  by  the  rule 
that  he  must  not  himself  interfere  with  the  person  or  prop- 
erty of  B.,  and  that,  if  injured  while  so  doing,  he  could  claim 
no  redress. 

The  two  general  rules  relating  to  the  enjoyment  of  person 
and  property,  unless  they  were  thus  amplified,  would  avail  man 
little.  While  it  is  true  that  all  men,  under  normal  conditions, 
instinctively  recognize  these  rules  in  their  general  application 
to  the  relations  between  them,  yet  the  conditions  under  which 
men  act  are  so  often  not  normal,  and  the  chances  of  a  clash- 
ing of  rights  are  so  great,  that  if  the  law  were  expressed  in 
these  two  general  rules,  with  no  subsidiary  rules  to  explain, 
define,  and  limit  their  application,  men  would  be  constantly  in 
uncertainty  as  to  the  effect  of  their  actions. 

Such  subsidiary  rules  are  a  part  of  the  law.  They  are  rules 
of  human  action,  and  have  become  a  part  of  the  law  because 


4  INTRODUCTORY.  (Ch.  1 

the  varying  relations  between  individuals  in  business  and  social 
life  have  demanded  them.  They  have  come  slowly  and  been 
grafted  into  the  law  one  by  one,  sometimes  by  the  common  rec- 
ognition of  men,  later,  it  may  be,  finding  a  definite  expression 
in  the  decisions  of  courts ;  sometimes  put  forth  in  the  first  in- 
stance by  the  courts ;  sometimes  established  by  legislative  bod- 
ies. Together  they  make  up  the  body  of  law  which  defines  the 
rights  and  obligations  of  men;  that  which  is  known  as  the 
"substantive  law." 

Development  of  the  Adjective  Lazv. 

It  must  not  be  supposed  that  this  mass  of  rules  alone  con- 
stitutes the  law  as  it  exists  to-day.  A.,  being  the  stronger, 
might  injure  B.'s  person  with  impunity,  and  B.  be  powerless 
to  defend  himself,  or  A.  might  trespass  upon  B.'s  land,  and, 
defying  B.,  remain  a  trespasser  during  his  own  pleasure,  were 
it  not  that  means  exist  by  which  B.  can  enforce  his  rights  in 
respect  to  his  person  and  property.  So,  too,  a  piece  of  prop- 
erty— a  horse,  for  example — claimed  by  both  A.  and  B.,  might 
go  to  the  stronger,  though  not  the  one  rightfully  entitled  to  it, 
were  it  not  for  such  means.  In  fact,  the  rules  defining  the 
rights  and  obligations  of  men,  however  complete  and  perfect 
they  might  be,  would  be  of  little  use  to  mankind,  unless  there 
existed  the  means  of  compelling  men  to  conform  their  actions 
to  them,  or  of  inflicting  punishment  upon  them  for  failure  to 
do  so. 

So  it  happens  that,  with  the  growth  of  the  substantive  law, 
another  kind  of  law  has  been  established,  which  relates,  not 
to  the  rights  and  obligations  of  men,  directly,  but  to  the  means 
of  enforcing  them.  This  is  the  law  which  defines  the  nature 
and  powers  of  judicial  tribunals,  and  then  prescribes  the  meth- 
ods of  procedure  therein.    This  is  known  as  the  "adjective  law." 

Division  of  Law  into  Separate  Branches. 

The  rules  both  of  substantive  and  adjective  law  have  at- 
tained such  vast  proportions  that,  for  convenience  in  explain- 
ing and  discussing  them,  they  are  generally  grouped  into  class- 
es according  to  the  nature  of  the  subject-matter  to  which  they 
relate.  Ench  class  is  then  spoken  of  by  itself,  as  the  law  of  the 
particular  subject  to  which  it  relates;    as  the  "law  of  torts," 


§§  4-5)    EVIDENCE  AND  THE  LAW  OF  EVIDENCE.         5 

the  "law  of  contracts,"  the  "law  of  evidence,"  and  the  like. 
What  each  subject  includes  is  dependent  largely  upon  the  con- 
ception of  the  particular  writer  handling  it,  for  there  is  no 
well-defined  dividing  line  between  many  of  the  subjects. 

Evidence  in  Its  Relation  to  the  Adjective  Law. 

The  adjective  law  includes  all  the  laws  which  have  built 
up  the  judicial  system,  whether  they  have  had  their  origin  in 
the  constitution,  the  legislature,  or  the  courts.  It  embraces, 
too,  the  laws  which  have  fixed  the  practice  in  the  courts, — the 
methods  of  carrying  on  the  work  by  judge  and  jury;  the  laws 
prescribing  the  manner  in  which  litigants  must  seek  relief  and 
carry  on  their  cases  are  also  included;  and,  finally,  certain 
rules  have  grown  up,  as  a  part  of  this  law,  which  relate,  not 
to  the  machinery  of  the  system,  but,  having  regard  to  the  im- 
perfections of  the  machinery,  are  concerned  with  sorting  out 
and  selecting  the  materials  which  are  supplied  to  it.  These 
last-mentioned  rules  make  up  the  law  of  evidence. 

The  laws  defining  the  nature  and  jurisdiction  of  the  different 
courts,  and  the  pleading  and  practice  therein,  fall  easily  into 
their  several  places  in  the  general  scheme  of  the  law.  Other 
parts  of  the  adjective  law,  and  notably  the  law  of  evidence, 
are  not  so  easily  disposed  of.  This  is  not  because  there  is  not 
a  distinct  dividing  line  between  the  law  of  evidence  and  the 
rest  of  the  law,  but  because,  while  maintaining  the  use  of  the 
term  "law  of  evidence,"  it  has  been  sought  to  include,  for  pur- 
poses of  convenience  in  the  treatment  of  the  subject,  other 
matters  more  or  less  connected  with,  but  yet  not  a  part  of  it. 
There  can  be  no  forcible  objection  to  the  treatment  of  the  law 
of  evidence  with  such  other  matters,  and  in  fact  there  may  be 
a  distinct  and  practical  advantage  in  it. 

"EVIDENCE"  AND  THE  "LAW  OF  EVIDENCE"  DISTIN- 
GUISHED AND  DEFINED. 

4.  The  xpord  "evidence"  means  any  matter  of  fact  from  ■which, 
an  inference  may  be  drawrn  as  to  another  matter  of 
fact.  The  former  fact  is  called  the  "evidentiary"  fact; 
the  latter,  the  "ultimate,"  "main,"  or  "principal" 
fact. 


6  INTRODUCTORY.  (Ch.  1 

&.  The  law^  of  evidence  relates  to  the  use  of  evidence  before 
judicial  tribunals,  and,  in  its  proper  significance,  con- 
sists of 

(a)  Certain  rules  as  to  the  exclusion  of  evidence,  and 

(b)  The  rules  vsrhich  prescribe  the  manner  of  presenting  evi- 

dence in  the  courts. 

Properly  speaking,  the  law  of  evidence  embraces  those  rules 
which,  by  statutes  or  the  decisions  and  practice  of  courts, 
have  been  established  to  govern  the  use  of  evidence  by  the 
courts  in  the  administration  of  justice.  We  are  thus  at  once 
driven  to  a  definition  of  the  word  "evidence." 

Inference  as  the  Determining  Feature  of  Evidence. 

What,  then,  is  evidence  ?  Perhaps  the  best  and  simplest 
definition  is  that  it  is  any  matter  of  fact  from  which  an  infer- 
ence may  be  drawn  as  to  another  matter  of  fact.-     Starting 

2  Bontliam.  in  his  Rationale  of  Judicial  Evidence  (volume  1  [1827] 
p.  17),  seems  to  Lave  been  the  first  to  define  "evidence"  in  this  man- 
ner. His  language  is :  "Any  matter  of  fact,  the  effect,  tendency,  or 
design  of  whicli,  when  presented  to  the  mind,  is  to  produce  a  per- 
suasion concerning  tlie  existence  of  some  other  matter  of  fact ;  a 
persuasion  either  affirmative  or  disaflirmative  of  its  existence."  Prof. 
Thayer  (3  Harv.  Law  Rev.  143)  substantially  follows  Bentham's  idea, 
but  narrows  the  scope  of  the  word  to  "any  matter  of  fact  which  is 
furnished  to  a  legal  tribunal  *  *  *  otherwise  than  by  reason- 
ing or  a  reference  to  what  is  noticed  without  proof,  *  *  *  as 
the  basis  of  inlerence  in  ascertaining  some  other  matter  of  fact." 
The  broader  definition  seems  the  more  accurate,  as  the  incident  of 
any  given  fact  being  furnished  to  a  legal  tribunal  in  no  sense  affects 
its  nature  as  an  evidentiary  fact.  It  is  or  is  not  evidence  of  another 
fact,  according  as  it  tends,  or  not,  to  produce  in  the  mind  an  infer- 
ence ns  to  such  other  fact.  The  earlier  works  on  the  subject  (Gil- 
bert [17.'')G,  179.J])  seem  to  have  found  no  need  for  defining  the  word. 
Swift  (Evidence  [1810]  p.  1)  saj'-s,  "Evidence  is  what  demonstrates, 
makes  clear,  and  ascertains  to  the  triors  the  truth  of  the  facts  put 
in  issue,"  wliich  is  practically  the  same  as  F.lackstone's  definition 
(book  3  [17721  p.  3G7,  c.  23).  Morgan  adopts  P.Iackstone's  definition. 
Essiiys  [l7Sni  vol.  1.  p.  5.  In  Trials  per  Pais,  by  Duncomb  (volume 
2  [ncf,]  pp.  .347,  348),  Lord  Coke's  definition  of  the  word  is  adopted, 
wliicli  is  as  follows  (1  Coke,  Inst.  2a3a):  "Evidence.  'Evidentia.'  This 
word  in  Ipgal  nnilerstanding  doth  not  only  contain  matters  of  rec- 
ord, ns  lt>tters  patent,  fines,  recoveries,  enrollments,  and  the  like; 
and  writings  under  seal,  as  charters  and  deeds;  and  writings  with- 
out seals,  as  wurt  rolls,  accounts,  and  the  like,— which  are  called  ev- 


§§  4-5)    EVIDENCE  AXD  THE  LAW  OF  EVIDENCE.         7 

with  this  definition  of  "evidence,"  we  have  a  basis  upon  which 
to  work.  What,  then,  is  the  relation  of  evidence  to  the  law, 
that  we  need  concern  ourselves  with  a  law  of  evidence?  It  is 
plain  that  a  very  great  part  of  the  knowledge  upon  which  we 
base  our  actions  is  derived  from  inferences.  There  are  several 
wa}is  of  telling  whether  my  morning  coffee  is  hot.  I  may  ap- 
ply it  directly  to  my  sense  of  feeling,  in  which  case  the  sen- 
sation of  heat  results,  and  convinces  the  mind  without  process 
of  inference.  I  may,  however,  not  touch  the  coffee,  but  only 
observe  the  vapor  arising  from  it,  in  which  case  I  am  equally 
well  satisfied  that  it  is  hot,  but  inference  has  played  an  impor- 
tant part.  I  have  inferred  that  it  is  hot  because  experience 
has  taught  me  that,  in  similar  cases  where  I  observed  the  vapor 
arising,  upon  touching  the  coffee  the  sensation  of  heat  re- 
sulted. On  this  experience  I  base  an  inference,  from  the  fact 
that  vapor  arises,  that  the  coffee  is  hot.  I  may  neither  touch 
nor  see  the  coffee,  but  may  hear  it  boiling  on  the  stove.  Pre- 
vious experience  having  taught  me  to  connect  the  sound  with 
the  presence  of  heat  in  the  liquid,  I  infer  from  the  sound  that 
heat  is  present  this  time.  To  go  a  step  further,  I  may  ask  X. 
to  tell  me  what  he  knows  about  the  coffee,  and  X.,  having 

iclences  'instrnmenta' ;    but  in  a  larger  sense  it  contaiueth  also  tes- 
timonia,  the  testimony  of  witnesses  and  other  proofs  to  be  produced 
and  given  to  a  jury  for  the  finding  of  any  issue  joined  betvs-een  the 
parties."     Stephen  seems  to  have  found  the  basis  of  his  definition 
in  this,  as  he  says:    "'Evidence'  means  (1)  statements  made  by  wit- 
nesses in  court*  under  a  legal  sanction,  in  relation  to  matters  of  fact 
under   inquiry;     (2^    documents   produced   for   the   insioection  of  the 
court  or  judge."     But  he  omitted  in  his  first  subdivision  what  Coke 
was  careful  to  add  to  his  corresponding  subdivision,  "testimony  of 
witnesses  and  other   proof."     The  words  "other  proof"  may  cover 
just  those  kinds  of  evidence,  namely,  objects  pra«?ented  to  the  senses 
of  the  tribunal — real  evidence — which  Prof.  Thayer  criticises  Steph- 
en for  failing  to  include  in  his  definition.  Thayer,  Cas.  Ev.  (2d  Ed.)  p. 
2,  note  1.    We  then  have  that  other  style  of  definition  adopted  by  Star- 
kie  (1828),  Greenleaf  (1842),   and  Taylor  (1848),  of  which,  perhaps^ 
Taylor's  is  the  most  accurate,  since  it  considers  the  word  in  its  re- 
lation to  law  only,  and  excludes  argument,  while  Starkie  does  not 
do  the  former,  and  Greenleaf  does  net  do  the  latter.     Taylor's  defi- 
nition is  as  follows  (Tayl.  Ev.  1):    "The  word  'evidence,'  considered 
in  relation  to  law,  includes  all  the  legal  means,  exclusive  of  mere 
argument,  which  tend  to  prove  or  disprove  any  matter  of  fact,  the 
truth  of  which  is  submitted  to  judicial  investigation." 


8  INTRODUCTORY.  (Ch.  1 

been  in  the  kitchen,  and  seen  the  coffee  poured  into  the  cup, 
and  seen  the  cook  take  hold  of  the  cup  and  suddenly  jerk  away 
her  hand,  may  relate  this  circumstance  to  me.  With  this  fact 
as  a  basis,  and  having  neither  touched,  seen,  nor  heard  the 
coffee,  I,  at  once,  by  process  of  inference,  am  impressed  that 
the  coffee  is  hot. 

So  it  is  with  the  most  unimportant  facts  in  our  daily  life 
as  it  is  with  the  greater  issues.  Inference,  or  determining 
the  state  or  existence  of  one  fact  by  another,  is  the  staff  of  the 
mind. 

Every  fact  which  is  the  basis  of  an  inference  is  evidence, 
and  is  thus  frequently  termed  an  "evidentiary"  fact,  while  the 
fact  which  is  inferred  from  it  is  called  the  "ultimate"  or  "prin- 
cipal" fact. 

The  law  has  to  do  with  evidence  because,  in  its  tribunals, 
it  has  to  do  with  facts  in  order  to  apply  and  enforce  its  rules, 
— facts  which  are  disputed,  and  the  existence  or  nonexistence 
of  which  must  be  determined.  If  A.  charges  B.  with  having 
interfered  with  his  (A.'s)  property  by  tramping  across  it,  this 
fact  must  be  determined.  It  is  determined  by  means  of  the 
submission  of  facts  from  which  the  tribunal  may  draw  infer- 
ences as  to  whether  B.  did  or  did  not  commit  the  trespass. 
These  facts  are  evidence. 


ORIGIN  OF  THE  IiA"W  OF  EVIDENCE. 

6.    The  laT7  of  evidence  has  developed  out  of 

(a)  Certain  old  ideas  as  to  the  nature  and  capacity  of  the 

jury; 

(b)  A  regard  for  the  shortness  of  human  life,  and  the  volume 

of  business  to  be  transacted  by  the  courts; 

(c)  Certain  other  considerations  of  policy. 

Susceptibility  and  Ignorance  of  the  Jury  as  Factors  in  the  De- 
velopment of  Excluding  Rules. 

In  the  submission  of  the  facts  which,  as  above  explained, 
constitute  the  evidence  in  a  case,  there  have  been  embarrass- 
ments, real  and  imaginary,  which  have  resulted  in  the  de- 
velopment of  a  set  of  rules.  These  rules  relate  to  the  use  of 
such  facts  in  court  as  evidence,  and  make  up  the  "law  of  evi- 


§  6)  ORIGIN    OF   THE    LAW    OF    EVIDENCE.  9 

dence."  The  embarrassments  referred  to  may  be  attributed,  in 
the  early  stages  of  the  law,  mainly  to  the  jury — the  one  feature 
of  our  judicial  system  in  which  it  differs  from  all  others.  The 
jury,  from  the  time  it  began  to  take  on  the  character  of  an  ar- 
biter of  the  facts,  must  have  been  a  disturbing  element  in  the 
work  of  the  court.  It  was  an  uncertain  quantity,  which,  in 
the  eyes  of  the  judge,  needed  to  be  guarded  against. 

When  the  jury  existed  merely  as  a  body  of  witnesses,  sup- 
posedly familiar  with  the  facts,  who  from  their  own  knowledge 
stated  what  the  facts  were,^  the  court  could,  in  the  applica- 
tion of  the  law  to  the  facts,  exercise  a  control  over  the  result 
which  was  impossible  when  the  character  of  the  jury  changed. 
With  the  development  of  the  jury  into  a  reasoning,  inference- 
drawing  body  of  men,  possessing  the  power  to  determine  the 
ultimate  facts  in  issue,  and  by  their  verdict  to  judicially  settle 
the  controversy,  the  situation,  to  the  mind  of  the  judge,  was 
full  of  embarrassments.  To  what  conclusions  might  not  these 
men  come ;  men  ignorant  of  the  law  and  its  methods,  unfamil- 
iar with  the  ways  of  counsel,  open  to  the  influence  of  testi- 
mony and  argument  presented  solely  for  the  purpose  of  play- 
ing upon  their  sympathy,  passion,  and  prejudice.  This  was  a 
situation  to  be  deplored,  and  to  be  relieved  of  its  dangers  as 
far  as  possible. 

Accordingly,  with  the  beginning  of  the  use  of  evidence  be- 
fore juries,  we  find  the  beginnings  of  the  law  of  evidence. 
Statements  to  which  the  courts  might  listen  with  impunity 
were  carefully  kept  from  the  jury  by  excluding  rules,  estab- 
lished by  the  judges. 

It  must  not  be  supposed  that  these  excluding  rules  came  in- 
to being  all  at  once.  The  development  of  the  jury  into  its  final 
shape  was  a  gradual  one;  and  the  growth  of  rules  governing 
the  use  of  evidence  before  the  jury  was  equally  gradual.  It 
is  immaterial  to  inquire  here  as  to  the  kind  of  evidence  which 
was  excluded ;  that  forms  the  subject-matter  of  the  later  chap- 
ters in  this  work.  It  is  sufficient  to  say  that,  in  general,  ev- 
erything except  what  was  actually  within  the  personal  knowl- 
edge of  the  witness  was  considered  unsafe  to  put  before  the 
jury.    Thus,  hearsay  and  opinion  were  both  objectionable.    In 

sBushell's  Case,  Vaughan,   135,  142,   147-149. 


10  INTRODUCTORY.  (Ch.  1 

this  way  the  susceptibiHty  of  the  jury  played  its  part  in  mold- 
ins:  the  law  of  evidence  into  its  modern  form. 

The  supposed  ignorance  of  the  average  jury  was  also  an 
important  factor  in  the  evolution  of  the  rules  of  evidence. 
Things  likely  to  complicate  the  case,  to  confuse  the  mind,  or 
mislead  as  to  the  real  facts  in  issue  were  accordingly  excluded. 

Limitations  of  Time. 

With  the  expansion  of  the  work  of  the  courts  and  the  ever- 
increasing  volume  of  business  brought  before  them,  a  neces- 
sity arose  for  the  shortening  of  trials  and  the  expediting  of 
the  work  in  every  possible  way.  This  influence  was  a  power- 
ful one  in  its  effect  upon  the  admission  of  evidence.  Much  that 
was  logically  relevant,  and  indeed  worthy  of  consideration,  if 
minute  inquiry  were  possible,  became  inadmissible,  upon  the 
theory  that  it  was  too  remote,  or  of  slight  importance.  Col- 
lateral matters  these  were  in  the  main, — ^^matters  likely  to  lead 
to  prolonged  collateral  inquiry,  with  a  meager  result  in  the 
way  of  inference-compelling  proof  when  finished. 

Other  Factors. 

t'Hhcr  things  operated  to  make  it  easy  and  natural  for  the 
courts  to  establish  rules  relating  to  the  use  of  evidence.  The 
policy  of  the  law  in  respect  to  persons  charged  with  wrongs, 
which  extends  to  them  the  extreme  limit  of  fairness,  is  respon- 
sible for  the  growth  of  an  important  class  of  excluding  rules. 
Such  rules  shut  out  from  the  consideration  of  the  jury  any 
facts  bearing  iipon  character  or  habit;  and  this,  although  in 
many  instances  previous  character  would  be  logically  a  most 
important  piece  of  evidence  from  which  to  infer  the  truth  as 
to  the  facts  in  issue. 

We  may  thus  get  some  idea  of  the  elements  which  have  for 
centuries  been  at  work  molding  forms  into  which  matters  of 
evidence  for  judicial  tribunals  must  be  oast,  building  barriers 
within  which  they  must  be  confined,  and  wearing  grooves  along 
which  the  wheels  of  judicial  inquiry  must  run.* 

*  How  Important  a  part  tlie  .iury  played  in  the  development  of  the 
law  of  Evidence  may  be  realized  when  one  considers  such  a  deci- 
sion as  that  in  Bell  v.  Walker,  54  Neb.  222,  74  N.  W.  617,  where  it 
was  held  tbat  tlie  admission  of  improper  evidence  in  a  case  tried 
without  a  juiy  is  not  ground  for  reversal,  and  every  practitioner  is 


§  7)  FUXCTIOXS    OF    COURT   ON    A    TRIAL.  11 


FUNCTIONS  OF  COURT  ON  A  TRIAL. 

7.    In  the  trial  of  a  case,  it  is  the  office  of  the  court  to  decide: 

(a)  'What  facts  constitute  the  case; 

(b)  'What   other   facts  properly   belong   to   the   case,    as    evi- 

dential of   snch  main  facts;    and 

(c)  In  \vhat  manner  both  the  main  facts  and  the  evidential 

facts  may  be  presented. 

In  the  conduct  of  a  trial  and  the  performance  of  these  offices, 
the  court  is  governed  by  the  rules  of  evidence ;  but  it  is  also 
governed  by  rules  of  substantive  law,  rules  of  the  law  of  pro- 
cedure and  pleading,  and  rules  relating  to  functions  of  the 
court  not  classified  under  any  of  these  heads.  It  is  important 
to  distinguish  the  rules  of  evidence  from  the  other  rules  men- 
tioned.^ 

Law  of  Evidence  Will  Not  Determine  What  Are  the  Main 

Facts  in  a  Case. 

With  the  first  function  of  the  court,  the  law  of  evidence, 
obviously,  has  nothing  to  do.  There  is  no  principle  of  evidence 
upon  which  the  court  can  determine  what  are  the  main  facts 
which  constitute  any  given  case.  The  nature  of  the  wrong 
alleged  and  of  the  remedy  sought,  and  the  substantive  law,  i. 
e.,  the  law  which  defines  the  rights  and  obligations  of  mankind 
in  respect  to  such  wrong  and  remedy,  must  govern  the  court 
in  the  exercise  of  this  function. 

Having  determined  what  are  the  main  facts — upon  the  ex- 
istence or  nonexistence  of  which  depends  the  relief  to  which 
the  parties  are  entitled,  and  which  facts,  in  a  large  sense,  con- 
stitute the  case  which  is  before  the  court — the  next  step  is  to 
determine  which  of  these  facts  are  in  dispute  between  the  par- 
ties;  i.  e.,  what  are  the  facts  which  constitute  the  case  at  issue. 

familiar  with  the  custom  prevailing,  where  cases  are  tried  before 
the  .iuclsre  alone,  or  a  referee,  of  taking  little  account  of  the  ordinary 
rules  of  evidence. 

5  In  an  article  on  the  present  and  future  of  evidence  (12  Harvard 
Law  Review,  71)  Prof.  James  B.  Thayer  very  ably  discusses  some 
of  the  weaknesses  of  our  present  system,  and  makes  some  very  val- 
ual)le  suggestions  as  to  the  enlargement  of  the  functions  of  the  coui't 
upon  jurj'  trial. 


12  INTRODUCTORY.  (Ch.  1 

Here,  again,  there  is,  strictly,  no  principle  of  evidence  which 
will  help  the  court.  Two  factors  enter  into  the  question: 
First,  the  pleadings ;  second,  the  duty  of  the  court  to  take  cer- 
tain facts  as  true,  and  its  right  to  take  certain  other  facts  as 
true. 

The  determination  from  the  pleadings  of  what  facts  are  at 
issue  between  the  parties  has  to  do  with  procedure,  and  not 
with  evidence.  The  successive  pleadings  in  a  cause  were  de- 
signed to  eliminate  from  the  controversy  all  facts  about  which 
there  was  no  dispute,  and  the  rules  which  must  govern  the 
court  in  its  examination  and  construction  of  the  pleadings  are 
outside  of  the  law  of  evidence.^ 

Those  main  facts  which  go  to  make  up  the  case,  and  which 
are  not  put  in  issue  by  the  pleadings,  are  taken  by  the  court  as 
true,  upon  the  principle  that  the  court  will  not  make  any  in- 
quiry into  the  truth  of  facts  about  which  there  is  no  dispute. 
If  the  parties  are  willing  that  a  controversy  between  them 
should  be  decided  upon  the  theory  that  certain  facts  are  true, 
there  is  no  injustice  done,  even  though  such  facts  are  not  true. 

The  facts  in  issue  are  narrowed  down  still  further  by  that 
principle  of  the  administration  of  our  judicial  system  which  in 
respect  to  certain  matters  requires,  and  in  respect  to  other  mat- 
ters permits,  the  court  to  take  judicial  notice.  With  these 
facts,  and  with  the  doctrine  of  judicial  notice,  the  law  of  evi- 

«  It  may  be  noted  that,  given  certain  pleadings,  and  the  court  after 
an  examination  having  determined  that  certain  facts  in  the  case  are 
admitted,  the  admission,  if  expressly  contained  in  a  pleading,  may 
have  the  same  evidentiary  character  as  an  admission  ontslde  of  the 
pleadings,  proof  of  which  is  introduced  at  the  trial.  To  illustrate, 
suppose  A.  brings  an  action  against  X.  for  broach  of  contract;  the 
fact  of  the  existence  of  the  contract  is  one  of  the  main  facts  in  the 
case.  Sui)pose  X.,  in  his  answer  to  A.'s  complaint,  expressly  admits 
the  existence  of  the  contract.  The  fact,  then,  is  not  in  issue;  it  is 
already  established.  The  admission  is  a  fact  which  is  before  the 
court,  and  from  it  there  is  a  logical  Inference  that  the  contract  ex- 
isted. In  this  light,  an  admission  in  a  pleading  is  evidence;  but, 
after  all,  In  determining  the  question  of  whether  or  not  a  fact  is  to 
be  taken  as  true  on  the  pleadings,  the  evidentiary  character  of  the 
admission  is  not  what  governs.  The  court  might  know  in  its  pri- 
vate capacity  that  no  such  contract  (to  use  the  illustration  cited)  in 
fact  did  exist,  and  yet  be  bound  to  take  the  statement  of  its  exist- 
ence as  true. 


§  7)  FUNCTIONS   OF   COURT   ON   A   TRIAL.  13 

dence  has  nothing  to  do.  Yet  the  doctrine  is  so  related  to  the 
law  of  evidence  that  it  is  convenient  to  take  it  up  in  connection 
with  that  subject,  and  it  will  be  noticed  more  fully  in  a  sep- 
arate chapter. 

Hov^  the  Laiv  of  Evidence  is  Connected  with  the  Determina- 
tion of  the  Evidentiary  Facts. 

We  come  now  to  the  second  function  of  the  court  in  respect 
to  the  trial — the  determination  of  what  facts  other  than  the 
main  facts  in  issue  may  be  proved,  as  evidential  of.  the  main 
facts.  In  this  determination  the  court  is  concerned  more  or 
less  with  the  principles  of  the  law  of  evidence,  but  it  is  also 
concerned  with  some  other  things. 

The  first  condition  which  a  fact,  proof  of  which,  as  an  evi- 
dentiary fact,  is  offered,  must  fulfill,  is  that  it  must  be  eviden- 
tial of  the  main  fact.  It  must  furnish  a  basis  from  which  the 
main  fact  can  be  inferred.  The  first  duty  of  the  court  is  to  ap- 
ply the  underlying  principle  of  the  law  of  evidence,  namely, 
logical  relevancy,  for  the  purpose  of  determining  whether  or 
not  the  fact  offered  can  be  evidence.  If  the  fact  meets  this 
test,  it  may  or  may  not  be  admitted.  For  flanked  around  the 
general  principle  in  the  law  of  evidence,  that  what  is  logically 
relevant  is  admissible,  are  numerous  excluding  rules,  which 
say  that  this  or  that  fact,  though  logically  relevant,  is  inad- 
missible. The  jury,  as  a  feature  of  our  judicial  system,  is  re- 
sponsible for  the  existence  of  many  of  these  rules,  though  each 
has  its  own  peculiar  principle  upon  which  it  is  founded.  These 
rules,  and  their  application,  form  a  large  portion  of  the  law 
of  evidence. 

A  fact  may,  however,  be  logically  relevant,  and  subject  to 
none  of  the  excluding  rules,  and  still  be  inadmissible,  by  rea- 
son of  some  rule  of  substantive  law  which  says  that  it  cannot 
be  shown.  In  applying  such  a  rule,  the  court  is  not  applying 
any  rule  of  evidence,  and  in  this  respect  the  exercise  by  the 
court  of  its  function  in  respect  to  evidentiary  facts  has  noth- 
ing to  do  with  the  law  of  evidence. 

Lazv  of  Evidence  Prescribes  the  Manner  of  Proving  both  Main 

and  Evidentiary  Facts. 

If  the  fact  sought  to  be  proved  is  one  of  the  main  facts  in 
issue,  or  is  a  fact  which  is  evidentiary,  and  at  the  same  time 


14  INTRODUCTORY.  (Ch.  1 

subject  to  none  of  the  excluding  rules  which  would  make  it 
inadmissible,  the  next  consideration  is  as  to  the  manner  in 
which  it  may  be  proved.  The  court,  in  the  exercise  of  its 
function  in  this  respect,  is  applying  those  principles  of  the 
law  of  evidence  which  "prescribe  the  manner  of  presenting 
evidence,  as  by  requiring  that  it  shall  be  given  in  open  court, 
by  one  who  personally  knows  the  thing  to  be  true,  appearing 
in  person,  subject  to  cross-examination,  or  by  allowing  it  to 
be  given  by  deposition  taken  in  such  and  such  a  way,"  and 
fixes  "the  qualifications  and  privileges  of  witnesses,  and  the 
mode  of  examining  them."  ^ 


RULES   OF   EVIDENCE   SECONDARY  TO   THE   PLEADINGS 
AND   RULES    OF   SUBSTANTIVE   LATV. 

8.  The  rules  of  evidence  do  not  ccine  into  service  until  it  lias 
been  determined  by  otlier  means  Tvhat  are  the  actual 
facts  in  dispute  between  tke  parties,— the  "facts  in 
issue."  The  "other  means"  referred  to  are  the  plead- 
ings, and  the  rules  of  substantive  law  applicable  to 
the    particular   case. 

Every  case,  it  has  been  said,  is  merely  a  collection  or  state 
of  facts.  A  perfectly  truthful  and  accurate  statement  of  the 
circumstances  out  of  which,  by  reason  of  some  principle  of 
law,  it  is  claimed  a  liability  arises  in  favor  of  the  plaintiff  and 
against  the  defendant,  would  be  what  might  be  called  a  per- 
fect case.  If  there  were  a  means  of  presenting  such  a  state- 
ment to  the  court,  juries  would  no  longer  be  of  use,  witnesses 
would  be  unknown,  and  there  would  be  no  law  of  evidence. 
Litigants  would  simply  receive  from  the  court  an  interpreta- 
tion of  the  principles  of  law  as  applicable  to  each  particular 
state  of  facts  presented.  Unfortunately,  however,  this  condi- 
tion of  things  is  impossible,  for  the  reason  that  men  are  fallible, 
v;ith  imperfect  memories,  and  even  likely  to  have  their  percep- 
tions colored  by  passion  and  prejudice,  so  that  two  accounts 
by  different  persons  who  have  seen  the  same  occurrences  under 
precisely  the  same  physical  conditions  seldom  agree. 

7  Tliayer,  Cas.  Ev.  (2d  Ed.)  p.  2. 


§  8)  RULES    OF    EVIDENCE    SECONDARY.  15 

The  "perfect  case"  is  the  goal  for  which  the  courts  strive, 
and  the  nearer  they  can  get  to  that  the  more  complete  justice 
can  they  render.  In  the  process  of  getting  at  the  facts  which 
constitute  the  case,  there  are  several  distinct  steps  which  may 
properly  be  considered  here. 

In 'the  first  place,  let  it  be  understood  that  no  tribunal  or 
court  composed  of  men  is  omniscient  or  omnipresent,  and  there- 
fore, as  it  cannot  be  everywhere  and  see  and  know  everything, 
we  may  start  with  the  theory  that  it  knows  nothing  except  the 
principles  of  the  law ;  that  all  facts  to  v/hich  it  is  asked  to  ap- 
ply the  law  miust  in  some  way  be  placed  before  it.  With  the 
means  by  which  this  is  to  be  done,  we  are  now  concerned. 

First.  The  court  must  be  acquainted  with  all  the  facts  mak- 
ing up  the  combination  upon  which  the  plaintiff  claims  that  he 
is  entitled  to  have  some  principle  of  law  applied  in  his  favor. 
These  are  presented  by  a  statement  to  the  court  made  by  the 
plaintiff. 

Second.  It  must  be  acquainted  with  all  the  explanatory  facts 
which  the  defendant  desires  to  offer  as  showing  that  there  is 
no  case  for  the  application  of  a  legal  principle  against  him. 
This  is  done  by  a  statement  made  to  the  court  by  the  defendant. 
Third.  It  must  be  told  what  facts  presented  by  the  plaintiff 
the  defendant  admits  to  be  true,  and  vice  versa;  for  the  court 
will  not  spend  its  time  in  searching  out  the  truth  or  falsity  of 
facts  which  both  parties  are  agreed  upon.  Justice  is  done  be- 
tween them  if  the  facts  are  taken  to  be  what  both  of  them  are 
willing  to  admit.  Each  party,  in  his  statement  or  statements 
to  the  court,  may  deny  any  fact  which  the  other  has  stated,  and 
the  court  proceeds  upon  the  assumption  that  this  will  be  done. 
At  any  rate,  it  takes  as  true  what  is  not  denied. 

These  statements  to  the  court  made  by  the  respective  par- 
ties are  called  the  "pleadings,"  and  they  constitute  the  first  step 
in  the  process  of  arriving  at  a  "perfect  case."  They  perform 
the  service  of  placing  before  the  court  all  the  facts  constituting 
the  case,  and  pointing  out  which  ones  are  true  by  admission  of 
the  parties,  and  which  are  in  dispute.  To  the  extent  that  the 
facts  are  admitted,  the  perfect  case  is  already  attained.  If 
they  are  all  admitted,  there  is  no  need  for  further  machinery  to 
evolve  it.    This  sometimes  happens,  and  when  it  does  the  case 


16  INTRODUCTORY.  (Ch,  1 

is  ready  for  the  application  of  the  law,  without  further  pro- 
ceedings. 

When  the  criminal  stands  before  the  bar,  and  pleads  "Guilty" 
to  the  facts  charged  against  him,  there  is  no  need  for  witnesses 
or  jury.  A  perfect  case  is  made,  and  it  is  only  left  to  apply 
the  law.  When,  however,  he  pleads  "Not  guilty,"  the  determi- 
nation of  the  facts  must  be  accomplished  by  other  machinery, 
devised  for  that  purpose,  before  the  law  can  be  applied. 


JUDICIAL  NOTICE  AND   ADMISSIONS  AS   FACTORS  IN 
ARRIVING  AT  THE  FACTS  OF  A  CASE. 

9.  When  it  lias  been  determined  \irhat  facts  are   actually  in 

issue,  the  establishment  of  such  facts  does  not  depend 
entirely  upon  the  use  of  evidence. 

10.  The   application   of   the   doctrine    of   judicial   notice,   and 

the  formal  admissions  of  the  parties,  may  place  a  part 
of  the  facts  in  issue  above  necessity  of  evidence. 

Whether  all  or  only  a  part  of  the  facts  are  in  dispute  on  the 
pleadings,  the  next  step  is  the  determination  of  what  the  real 
truth  is  with  respect  to  such  facts  as  are  in  dispute.  This  is 
accomplished  in  three  distinct  ways,  two  of  which  may  be  called 
negative,  and  one  positive : 

(1)  By  the  exercise  on  the  part  of  the  court  of  its  own  intelli- 
gence, and  the  taking  of  certain  facts  as  true,  for  various  rea- 
sons deemed  sufficient  to  justify  the  court  in  so  doing.  This 
requires  action  on  the  part  of  the  court,  which  supplies  to  it- 
self facts  needed  to  complete  the  case. 

(2)  By  admission  in  court,  and  outside  of  the  pleadings,  of 
facts  in  dispute  on  the  pleadings.^  This  requires  action  on  the 
part  of  the  parties,  who  supply  by  admission  facts  needed  to 
complete  the  case. 

8  Such  admission  must  not  be  confounded  with  the  confession  or 
admission  of  a  party  which  may  be  proved  in  evidence,  and  which 
may  be  a  justification  to  the  jury  to  find  the  facts,  in  accordance 
with  the  admission,  by  reason  of  a  probative  force  in  the  admission. 
or  because  it  excuses  proof.  The  admissions  referred  to  in  (2)  are 
tlio  formal  admissions  made  during  the  progress  of  the  trial,  by  the 
parties,  and  which  operate  the  same  as  admissions  in  the  pleading, 
and  bind  the  court  to  the  facts  as  admitted. 


§§  9-10)  JUDICIAL   NOTICE    AND   ADMISSIONS.  17 

(3)  By  the  introduction  of  evidence  on  the  part  of  the  plain- 
tiff and  defendant — evidence  to  prove  or  disprove  the  facts  in 
dispute — and  the  submission  of  such  evidence,  when  in,  to  the 
jury,  that  they  may  find,  upon  it,  what  the  facts  in  dispute  in 
truth-  are ;  thus  completing  and  certifying  to  the  court  the  bal- 
ance of  the  facts  constituting  the  case,  in  order  that  the  law  may 
be  applied.  This  third  method  requires  action  on  the  part  of 
the  jury,  who,  by  their  determination,  supply  to  the  court  facts 
needed  to  complete  the  case.  This  method  produces  a  far  from 
"perfect  case,"  but  the  usage  of  centuries  sanctions  it ;  and  it  is 
perhaps  the  best  m.ethod  which  could  be  devised,  in  the  absence 
of  agreement  between  the  parties,  to  arrive  at  the  truth. 

The  first  two  methods  may  be  called  negative,  because  they 
excuse  evidence  or  proof,  and  result  in  certain  facts  being  taken 
as  true.  The  third  method  is  positive,  as  it  is  based  on  the  pro- 
duction of  evidence  or  proof.  It  is  true  that  the  law  of  evi- 
dence, strictly  speaking,  can  have  nothing  to  do  with  the  first 
two  methods,  and  that  its  peculiar  province  is  the  third.  Yet 
as  the  three  are  closely  united  in  their  relation  to  the  conduct 
of  trials,  and  the  first  two  affect  directly  the  necessity  of  pro- 
ducing evidence,  they  may  be  advantageously  treated  in  con- 
nection with  the  law  of  evidence. 

The  subject  of  formal  admissions  by  the  parties  for  the  pur- 
poses of  the  trial  is  one  about  which  little  need  be  said.  Their 
effect  is  the  same  as  though  contained  in  the  pleadings.  They 
are  often  made  by  the  one  party  or  the  other  to  expedite  the 
trial,  especially  in  relation  to  formal  matters  about  which  proof 
would  otherwise  be  required.  The  subject  of  judicial  notice  is 
much  more  important  and  extensive,  and  is  taken  up  in  the 
following  chapter. 

M'kELV.EV.(2d  ED.)— 2 


18  JUDICIAL   NOTICE.  (Ch.  2 

CHAPTER  II. 

JUDICIAL  NOTICE. 

11-12.  The   Doctrine  in   General. 

13.  Effects  Produced  by  the  Application  of  the  Doctrine. 

14-15.  Facts  Judicially  Noted  in  Relation  to  Proof. 

16.  The  Doctrine  Both  Mandatoi-y  and  Permissive. 

17.  Facts  Required  to  be  Noticed. 

18.  Reasons  for  the  Rule. 

19.  By  Statute. 

20.  By  Common  Law. 
21-24.  Governmental  Matters. 

25.  Phenomena  of  Nature. 

251^.  Facts  Related  to  Lives  of  Mankind. 

THE  DOCTRINE  IN  GENERAL. 

11*  The  subject  of  judicial  notice  is  mot  properly  a  part  of 
the  law  of  evidence;  but,  as  it  embraces  the  rules' 
which  relate  to  the  facts  in  issue  which  are  assumed 
to  be  true  without  evidence,  it  is  closely  allied  to  it. 

12.  The  doctrine  of  judicial  notice  is  that  there  are  certain 
facts  of  which  the  court  will  not  require  evidence,  be- 
cause they  are  so  well  known,  so  easily  ascertainable, 
or  so  related  to  the  ofiicial  ckaracter  of  the  court, 
that  it  would  not  be  good  sense  to  do  so. 

The  subject  of  judicial  notice  is  deserving  of  being-  treated  in 
connection  with,  if  not  as  a  part  of,  the  law  of  evidence.  It  has 
to  do  with  evidence,  in  a  negative  sense,  in  that  it  teaches  when 
evidence  need  not  be  given.  It  is  not  always  necessary  to  prove 
every  fact  which  goes  towards  the  making  up  of  a  case.  The 
fact  may  be  of  such  a  nature  that  the  court  either  cannot  or  will 
not  require  atiy  proof. 

In  the  process  of  presenting  a  case  to  the  court  for  the  ap- 
plication by  it  of  some  legal  principle,  we  have  seen  that  the 
pleadings  do- something.^  They  state  to  the  court  the  facts 
claimed  by  each  party  to  the  litigation  to  be  true — lay  a  founda- 
tion for  the  subsequent  proceedings. 

1  Ante,  p.  14. 


§  13)  EFFECTS   PKODUCED    BY    THE    DOCTHIXE.  10 

Often  they  go  a  step  further,  and,  by  the  admissions  they 
contain  of  the  material  facts  in  the  opposite  party's  pleading, 
eliminate  certain  of  the  facts  from  the  realm  of  proof. 

When  the  trial  is  reached,  and  the  facts  left  in  dispute  are 
brought  to  the  attention  of  the  court,  the  principle  of  judicial 
notice  may  come  in,  and  relieve  the  parties  still  further  from 
the  necessity  of  producing  evidence.  The  principle  of  judicial 
notice  is  largely  one  of  common  sense.  It  is  not  common  sense 
to  compel  formal  proof  of  a  thing  which  is  a  matter  of  com- 
mon knowledge,  or  which  is  a  matter  about  which  the  court, 
as  a  part  of  the  government,  knows  or  can  easily  ascertain. 
Most  of  the  rules  of  evidence  are  founded  on  the  principle  of 
life  being  too  short  to  allow  everything  which  is  logically  rele- 
vant to  be  admitted,  and  are  rules  of  exclusion.  The  principle 
of  judicial  notice  is  founded  in  part  on  the  same  regard  for  the 
limitations  of  time. 


EFFECTS  PRODUCED  BY  TKE  APPLICATION  OF  THE 

DOCTRINE. 

13.  The  only  direct  effect  of  tlie  application  of  the  doctrine 
is  to  relieve  the  parties  from  the  necessity  of  intro- 
ducing evidence  to  prove  the  fact  noticed;  but  there 
are  certain  indirect  effects  which  need  to  be  consid- 
ered and   distinguished. 

As  above  explained,  the  natural  and  obvious  effect  of  the  tak- 
ing by  the  court  of  judicial  notice  of  a  fact  is  to  relieve  the  par- 
ties from  the  necessity  of  introducing  evidence. 

The  fact  may  be  either  (a)  one  of  the  main  facts  in  the  case  f 
or  (b)  an  evidential  fact  necessary  or  helpful  in  establishing  a 
main  fact.     In  either  case  the  party  who  had  the  burden  of 

2  Ryer  v.  Prudential  Ins.  Co.,  85  App.  Div.  7.  82  N.  Y.  Supp.  971. 
One  of  the  main  facts  in  issue  was  tlie  commeueenieut  of  tlie  suit 
within  six  months  after  the  death  of  the  assured.  No  proof  was 
offered  by  the  plaintiff  on  the  point.  The  court,  however,  judicially 
noticed  that  the  action,  having  been  started  on  October  28th,  which 
was  Monday,  was,  under  the  constniction  of  time  applicable,  with- 
in six  months  after  the  death,  which  was  proved  to  have  taken  place 
on  April  27th :  the  plaintiff  being  allowed  an  additional  day  by  rea- 
son of  October  27th,  the  last  day  of  the  period,  falling  on  Sunday. 


20  JUDICIAL   NOTICE.  (Ch.  2 

proving  the  fact  is  relieved  from  such  burden.    This  is  the  first 
effect  observable. 

Now,  what,  if  any,  further  consequences  follow  the  taking 
of  judicial  notice? 

In  the  cases  we  find  frequent  inclination  to  make  more  of 
the  situation  and  attribute  more  to  the  application  of  the  doc- 
trine than  proper  regard  for  its  real  nature  would  warrant. 
Usually  some  other  principle  in  the  law  of  evidence  has  been 
applicable,  and  has  been  unconsciously  followed  by  the  court, 
and  its  efifect  confused  with  the  efifect  of  the  doctrine  profess- 
edly applied. 

In  a  recent  case  ^  a  material  fact  in  establishing  liability  on 
the  part  of  the  defendant  w^s  knowledge  that  a  certain  disease, 
known  as  "Texas"  or  "splenetic"  fever,  was  infectious  or  con- 
tagious. The  court  held  that  it  was  not  necessary  to  prove  the 
fact  that  the  disease  was  infectious  or  contagious,  that  this  was 
a  matter  of  common  knowledge,  of  which  the  courts  should 
take  judicial  notice,  and  invoked  this  principle  as  the  basis  for 
upholding  an  instruction  by  the  trial  judge  that  the  defendant 
zvas  chargeable  with  notice  that  the  disease  was  infectious  or 
contagious. 

Now,  here  are  two  facts  and  a  clear  distinction  between  them 
— first,  the  fact  that  the  disease  was  infectious  or  contagious; 
second,  the  fact  that  the  defendant  had  knoivledge  of  the  char- 
acter of  the  disease.     The  plaintiff  quite  properly  waS^  required 
to  give  evidence  of  neither.    As  to  the  first,  because  the  court 
would  judicially  notice  it;    as  to  the  second,  not  because  the 
court  would  judicially  notice  it— in  fact,  it  is  absurd  to  suppose 
that  the  court  could  take  judicial  notice  that  this  particular  de- 
fendant had  knowledge  of  the  character  of  the  disease ;  quite 
likely  it  did  not  have — but  because  the  nature  of  the  fact  was 
such  that  any  reasonably  intelligent  person  should  have  known 
it,  and  therefore  the  defendant  would  be  treated  as  though  he 
did  know  it  and  be  held  responsible  therefor,  a  very  conimon 
application  of  the  so-called  "conclusive  presumption"  which  is 
hereafter  treated  of.* 

Here  is  a  case,  then,  where  the  application  of  the  doctrine  of 

8  Dorr  Cattle  Co.  v.  Railway  Co.,  128  Iowa,  359,  103  N.  W.  1003. 
4  Post,  pp.  84,  85,  95. 


14)  FACTS   JUDICIALLY    NOTICED. 


21 


judicial  notice  seemed  inevitably  to  open  the  door  to  the  applica- 
tion of  the  doctrine  of  conclusive  presumption.  Query — will 
it  always  follow,  because  the  court  holds  that  a  fact  is  a  fact 
to  be  judicially  noticed,  that  the  party  affected  will  be  deemed 
to  have  knowledge  of  that  fact  and  be  treated  accordingly  ?  ^ 

Suppose,  for  example,  that  a  member  of  the  savage  tribes 
exhibited  at  the  St.  Louis  Exposition,  of  mature  age  and  ordi- 
nary attainments  according  to  the  standards  of  his  native  coun- 
try, but  having  no  familiarity  with  the  weapons  of  modern  war- 
fare, should  toss  a  live  coal  into  a  keg  of  gunpowder,  killing  a 
number  of  bystanders,  the  court  would  undoubtedly  judicially 
notice  the  fact  that  a  live  coal  brought  into  contact  with  gun- 
powder would  produce  disastrous  results,  and  the  further  fact 
that  the  effect  of  such  contact  is  known  to  any  ordinarily  intelli- 
gent human  being.  But  would  the  court  conclusively  presume 
that  the  defendant  knew  the  facts  thus  noticed  and  treat  him 
accordingly  ? 

FACTS   JUDICIALIiY  NOTICED  IN  REIiATION  TO  PROOF. 

14.  Facts  whicli  are  judicially  noticed  are  generally  consid- 
ered outside  of  tie  realm  of  proof,  but, 
(a)  If  the  facts  are  of  tlie  class  whicli  the  court  is  bound; 
to  notice,  but  the  court  does  not  have  a  present  knowl-^ 
edge  of  them,  evidence,  or,  strictly  speaking,  infor-^ 
mation,    to    assist   the    court   may   be    permitted. 

There  is  a  distinction  to  be  borne  in  mind  in  the  application 
of  the  doctrine  of  judicial  notice,  which,  if  clearly  perceived, 
will  save  much  confusion  of  thought. 

A  fact  judicially  noticed,  whether  it  be  evidence  of  another 

5  In  another  case,  wliere  defendant  was  sued  for  damages  caused 
by  mules  starting  up  suddenly,  it  was  held  that  "the  mule  is  a  do- 
mestic animal  whose  treacherous  and  vicious  nature  is  so  generally 
known  that  even  courts  may  take  judicial  notice  of  it.  The  defend- 
ant cannot  be  heard  to  claim  that  he  did  not  know  of  the  treacher- 
ous and  unreliable  qualities  of  the  animal."  Borden  v.  Falk  Ck).,  97 
Mo.  App.  5G6.  71  S.  W.  478.  See,  also,  John,  O'Brien  Lumber  Com- 
pany V.  Wilkinson,  12.3  Wis.  272,  101  N.  W.  1050,  where  a  general 
trade  custom  was  judicially  noticed,  and  the  parties  were  conclu- 
sively presumed  to  have  included  it  in  their  contract. 


22  JUDICIAL   NOTICE.  (Ch.  2 

fact  which  is  in  issue  or  be  the  main  fact,  is  at  once  taken  out 
of  the  reahn  of  proof  so  far  as  its  prima  facie  estabhshment  is 
concerned.  Anything  made  use  of  to  make  the  fact  clear  and 
certain,  whether  furnished  by  the  attorneys  or  found  by  the 
court,  and  whether  oral  statement  or  of  documentary  charac- 
ter, is  not  to  be  treated  as  evidence  or  as  subject  to  the  rules 
of  evidence.  It  is  merely  the  material  used  by  the  court  for  its 
own  enlightenment,  and  may  not  at  all  satisfy  the  requirements 
of  legal  proof.® 

A  curious  example  of  the  confusion  which  follows  the  failure 
to  note  the  above  distinction  is  found  in  a  case  where  the  judge 
wished  to  proceed  upon  the  assumption  that  the  name  "Bob" 
was  an  abbreviation  for  Robert  and  "Jack"  for  John,  and,  con- 
ceiving that  evidence  was  necessarily  bound  up  with  the  doc- 
trine, himself  took  the  stand,  and,  having  been  sworn,  testified 
to  the  said  facts.' 

The  opinion  seems  generally  to  have  prevailed  that  the 
courts,  at  all  times,  have  the  discretion  to  refuse  to  take  judi- 
cial notice  and  require  proof  of  facts.  If  this  is  so,  what,  then, 
is  the  meaning  of  the  rule  that  the  courts  must  take  judicial  no- 
tice of  certain  facts?  and  where  is  the  distinction  between  what 
the  courts  must,  and  what  they  may,  judicially  notice?  The 
fact  is  the  statement  is  not  accurate,  nor  is  it  borne  out  by  de- 
cisions. It  is  quite  true  that  the  court  may  be  in  actual  igno- 
rance of  a  fact  of  which  it  is  required  to  take  notice.  What, 
then,  is  it  to  do?  Can  it  not  recjuire  proof?  It  cannot;  but 
it  may  inform  itself,  or  may  require  counsel  in  their  capacity  as 
officers  of  the  court,  to  assist  it  in  obtaining  the  requisite  infor- 
mation, from  the  proper  sources.  This  is  in  no  sense  proof, 
and  should  not  be  treated  as  such.^ 


••■  State  V.  Main,  69  Conn.  123,  37  Atl.  80,  36  L.  R.  A.  623,  61  Am. 
St.  Itop.  .30.  In  this  case  the  conrt  says:  "If.  in  regard  to  any  sub- 
ject of  judicial  notice,  the  court  should  iiorniit  documents  to  be  I'e- 
ferred  to  or  testimony  introduced,  it  would  not  he.  in  any  projxT 
sense,  the  admission  of  evidence,  but  simply  a  report  to  a  convenient 
means  of  refrcshint;  the  memoiy.  or  making  the  trior  aware  of  that 
of  which  everybody  ouuht  to  be  aware." 

-  Alsup  V.  State,  36  Tex.  Cr.  R.  535,  38  S.  W.  17i. 

«  In  the  case  of  School  Dist.  No.  56  v.  Insurance  Co.,  101  U.  S. 
472.  2.J  L.  Ed.  SiJS,  the  court  required,  under  a  rule  of  court  provid- 


§  15)  FACTS   JUDICIALLY   NOTICED.  23 

15.  (b)  If  the  facts  are  of  the  class  Ttrhich  the  court  may  in 
its  discretion  judicially  notice,  the  party  affected  ad- 
versely by  the  facts  noticed  should  be  permitted  to 
introduce    evidence    to    disprove    them. 9 

A  recent  case  ^^  has  been  cited  as  a  case  where  the  court  re- 
fused to  receive  evidence  to  disprove  a  fact  of  which  it  took 
judicial  notice.  The  fact  judicially  noticed  was  that  prolonged 
labor  in  a  smelter  is  as  a  general  thing  injurious  to  health,  and 
an  act  limiting  the  hours  of  labor  was  held  constitutional.  The 
evidence  offered  was  that  defendant's  occupation  in  such  smelt- 
er was  not  injurious.  The  evidence  was  rightly  excluded,  not 
because  it  was  in  disproof  of  the  fact  judicially  noticed,  so 
much  as  for  the  reason  that  it  was  immaterial.  The  fact  that 
the  occupation  was  not  injurious  to  a  particular  individual  was 
not  in  disproof  of  the  general  proposition  of  the  injurious  char- 
ing that  attoroeys  must  print  in  their  briefs  state  statutes  material 
to  a  decision,  the  help  of  the  parlies  as  to  a  matter  of  which  it  was 
bound  to  take  judicial  notice ;  but  it  seems  to  have  been  rather  in 
a  nature  of  service  which  it  had  the  right  to  demand  of  the  attor- 
neys, as  officers  under  its  control,  than  in  the  nature  of  proof. 

In  Bosvcoith  V.  Union  Ry.  Co.,  26  R.  I.  309,  58  Atl.  982,  counsel 
called  to  the  attention  of  the  court  certain  facts,  and  the  court  says : 
"The  plaintiffs  counsel  calls  to  our  notice  the  historical  event  con- 
nected with  this  strike,  and  particularly  that  very  early  in  the  morn- 
ing of  the  day  when  this  injury  w;;s  inflicted  the  Governor  had  or- 
dered a  military  force  to  Pawtucket  to  preserve  order  and  restrain 
violence  towards  the  property  and  employes  of  the  street  railroad 
company,  and  had  issued  his  proclamation  calling  \ipou  persons  riot- 
ously assembled  at  Pawtucket  to  disperse.  These  circumstances  are 
such  as  the  court  takes  judicial  notice  of  when  brought  to  its  atten- 
tion." 

f>  In  La  Rue  v.  Kansas  Mutual  Life  Ins.  Co.,  68  Kan.  5.39,  75  Pac. 
404,  the  court  perhaps  confused  historical  facts,  which,  in  its  dis- 
cretion, it  might  have  noticed,  with  other  facts  of  governmental  con- 
cern, which  it  was  bound  to  notice,  and  tlien  rejected  evidence  of- 
fered to  disprove  the  historical  fact,  on  the  ground  that  the  court 
could  not  listen  to  evidence  in  disproof  of  a  fact  judicially  noticed. 
Proper  distinction  between  the  two  classes  of  facts  in  the  case  would 
probably  have  resulted  in  the  court  admitting  the  evidence  which 
related  only  to  the  historical  facts,  and  then,  in  the  light  of  its  own 
knowledge,  together  with  the  evidence  introduced,  have  decided  the 
matter. 

10  Ex  parte  Kair,  28  Nev.  127,  80  P.  463. 


24  JUDICIAL   NOTICE.  (Cb.  2 

acter  of  prolonged  labor  in  such  places  to  workmen  as  a  class, 
and  it  was  this  proposition  which  the  court  judicially  noticed. 
It  is  quite  likely  that,  had  competent  and  material  evidence 
been  offered  to  show  that  the  court  was  wrong  in  accepting  this 
proposition  as  a  fact,  the  court  would  have  received  it. 

The  principle  is  well  settled  that  facts  of  which  the  court 
will  take  judicial  notice  need  not  be  pleaded.  The  effect  of  the 
doctrine  is,  therefore,  not  only  to  dispense  with  proof,  but  to 
'relieve  the  parties  from  the  necessity  of  setting  forth  in  their 
pleadings  many  essential  parts  of  their  case.^^ 

It  is  said  that  allegations  in  a  pleading  which  are  inconsistent 
with  facts  judicially  noticed  will  not  be  admitted  by  a  demur- 
rer,^- thus  making  it  appear  that  the  doctrine  of  judicial  notice 
has  a  peculiar  effect  upon  the  ordinary  function  of  a  demurrer. 
A  better  explanation  of  the  status  produced  by  the  concurrent 
application  of  the  doctrine  of  judicial  notice  and  the  theory  of 
demurrer  is  that  what  really  takes  place  is  that  the  court  treats 
as  set  forth  in  the  pleading  the  facts  which  it  judicially  notices, 
and  that  the  demurrer,  when  interposed,  admits  the  facts  in 
this  form.^^ 

The  court,  perhaps,  went  to  the  extreme  in  giving  effect  to 
the  doctrine  when  it  declared  erroneous  findings  of  fact  incon- 
sistent with  facts  judicially  noticed,  though  it  softened  the  ap- 

iiAltoona  Q.  M.  Co.  v.  Integral  Q.  M.  Co.,  114  Cal.  100,  103,  45 
Pac.  1047;  Vance  v.  Rankin,  194  111.  625,  62  N.  E.  807,  88  Am.  St. 
Rep.  173;  North  Platte  Waterworks  Co.  v.  City  of  North  Platte,  50 
Neb.  853,  70  N.  W.  393;  Burlington  Mfg.  Co.  v.  City  Hall  Com'rs, 
67  Minn.  327,  69  N.  W.  1091. 

^  12  French  v.  State  Senate,  146  Cal.  604,  80  Pac.  1031,  69  L.  R.  A. 
5.56.  A.,  in  an  action  for  reinstatement,  alleges  that  he  wa^  expelled 
from  the  Senate  of  the  state  without  a  hearing,  was  not  permitted 
a  trial  upon  the  charges  made,  nor  permitted  to  make  any  defense, 
tliat  the  charge  was  bril)ery.  and  that  it  was  false.  The  defendant, 
the  Senate,  demurs  generally. 

The  court  will  not  treat  the  facts  as  admitted  by  the  demurrer, 
but  will  .iudicially  notice  the  private  acts  of  the  Senate  in  the  pro- 
ceedings resulting  in  A.'s  expulsion,  which  sliow  full  investigation 
and  a  finding  that  the  charge  was  true,  and  will  treat  the  statements 
in  the  complaint  as  a  nullity.  See,  also,  statements  in  12  Ency.  of 
Pi.  &  Pr.  1. 

13  Mullan  V.  State,  114  Cal.  578,  581,  46  Pac.  670,  34  L.  R.  A.  262. 


§  16)  BOTH    MANDATORY    AND    PERMISSIVE.  25 

pearance  of  its  action  by  declaring  the  findings  to  be  a  state- 
ment of  a  conclusion.^* 


THE   DOCTRINE   BOTH   MANDATORY   AND    PERMISSIVE. 

16.  Tne  laiv  of  judicial  notice,  as  it  exists  to-day,  is  botli 
mandatory  and  permissive.  Of  certain  facts  tlie  court 
is  bound  to  take  judicial  notice.  Of  certain  otber 
facts  it  may,  in  its   discretion,  do  so. 

What  principle,  if  any,  divides  that  of  which  the  court  must 
take  judicial  notice  from  that  of  which  it  may  take  such  notice? 
It  is  doubtful  if  there  is  any  well-defined  principle  of  distinc- 
tion, by  which  a  matter  can  be  placed  on  the  one  side  or  on  the 
other  of  a  dividing  line. 

Facts  of  a  nature  to  require  assumption  by  the  court  in  the 
event  of  their  becoming  material  are  usually  so  axiomatic  as  to 
be  a  part  of  the  common  knowledge  in  accord  with  which  all 
men  order  their  lives. 

That  the  live  coal  will  burn  the  skin,  that  water  will  flow 
down  hill,  that  two  and  two  make  four,  are  the  kinds  of  facts 
which  the  court  must  assume,  or,  in  other  words,  take  judicial 
notice  of.  If  this  were  not  done,  and  the  court  for  lack  of  proof 
should  decide  against  the  party  to  whose  case  such  facts  were 
material,  it  would  clearly  be  error  for  which  a  new  trial  would 
be  granted. 

Cases  of  this  sort  do  not  occur  in  the  books,  because  judges 
are  ordinarily  sensible  beings,  and  think  and  act  in  the  ordi- 
nary way. 

When  we  go  outside  of  things  axiomatic  in  character  there 
are  other  classes  of  facts  which  the  court  must  assume  without 
proof;  facts,  for  example,  of  such  universal  and  common 
knowledge  that  to  require  proof  of  them  w^ould  be  an  absurdity. 
It  would  be  a  waste  of  time  to  permit  evidence  that  the  Atlantic 
Ocean  was  east  of  the  United  States,  that  California  was  west 
of  New  York,  that  horses  customarily  eat  oatfis,  that  cows 
give  milk,  that  Washington  was  the  first  President. 

14  Edson  V.  Southern  Pacific  R.  Co.,  144  Cal.  182,  77  Pac.  894.  898. 
The  fact  judicially  noticed  here  was  that  comparatively  few  persons 
claim  the  privileges  which  go  with  unlimited  railway  tickets. 


26  JUDICIAL   NOTICE.  (Ch.  2 

Again,  we  find  a  third  class  of  facts  of  which  the  court  is 
assumed  to  be  cognizant,  and  of  which,  therefore,  it  must  take 
judicial  notice.  Facts  within  this  class  are  facts  of  govern- 
mental concern,  having  to  do  with  the  machinery  of  which  the 
court  is  a  part.  Actual  knowledge  may  not  exist  on  the  part 
of  the  court  in  respect  to  facts  of  this  class.  The  sources  of 
information  are,  however,  peculiarly  accessible  to  the  court, 
and  the  information  easily  obtainable. 

Outside  of  the  three  groups  of  facts  above  mentioned  there 
may  be  facts  of  which  the  court  will  be  required  to  take  ju- 
dicial notice  because  the  statutory  or  common  law  compels  it. 

The  facts  required  by  the  statutes  to  be  noticed  without  proof 
may  or  may  not  fall  within  the  classes  above  referred  to. 
When  it  becomes  a  question  of  statutory  provision,  then  the 
statute  itself  is  the  ultimate  source  of  the  authority,  and  its 
provisions  must  be  complied  with. 

As  to  matters  which  by  common  law  have  been  fixed  as  sub- 
jects of  which  courts  are  bound  to  take  notice,  it  is  doubtful  if 
there  is  any  general  doctrine  which  can  be  laid  down.  In  cer- 
tain jurisdictions  decisions  have  fixed  the  law,  and  subsequent 
cases  involving  similar  questions  would  doubtless  be  held  sub- 
ject to  the  precedents  made  by  previous  authoritative  decisions ; 
but  no  general  rules  could  be  stated  which  would  apply  in  all 
jurisdictions. 

In  fact,  a  discussion  of  this  phase  of  judicial  notice  would 
encroach  so  largely  upon  the  field  of  discretionary  matters  as  to 
confuse,  rather  than  to  clarify,  the  subject. 

As  to  discretionary  matters  there  is  often  difficulty  in  de- 
termining in  any  given  case  whether  the  court  will  take  judi- 
cial notice. 

There  are  things  which  are  so  near  the  dividing  line  that 
it  is  difficult  to  say  upon  which  side  they  belong.  In  fact,  the 
lav.-  may  be  in  a  formative  state.  That  of  which  the  court  will 
not  take  judicial  notice  to-day  may  be  recognized  to-morrow 
as  out  of  the  realm  of  proof.  That  which  will  be  matter  of 
common  knowledge  in  one  country  or  locality,  and  be  judicially 
noticed,  in  another  will  be  entirely  beyond  the  knowledge  or 
experience  of  the  court  or  the  people. '^^ 

15  Stato  V.  M.Min.  G9  Conn.  123.  37  Atl.  80,  .30  L.  R.  A.  023.  01  Am. 
St.  Itep.  .".0.    The  court  took  judicial  notice  of  tlie  prevalence  of  the 


§   17)  FACTS    REQUIUED   TO    BE    NOTICED. 


27 


In  the  exercise  of  the  function  of  judicial  notice,  the  courts 
simply  reflect  the  state  of  the  times,  and  progress  with  the 
progress  of  the  people. ^^ 

FACTS   REQUIRED    TO   BE    NOTICED. 

17.  From  the  above  general  explanation  we  may  formulate 
a  classification  of  facts  required  to  be  noticed  as  fol- 
lows : 

(a)  The    courts   must   notice   facts   which   they   are    required 

by  statute  to  notice  whatever  the  character  of  such 
facts. 

(b)  The  courts  must  notice  facts  which  by  the  common  law 

(i.  e.,  the  decisions  of  courts),  have  become  fixed  as 
proper  subjects  for  judicial  notice.  Such  facts  may 
be  classed  as  (1)  facts  axiomatic  in  character,  (2)  so 
universally  accepted  as  to  be  part  of  the  common 
knowledge  of  mankind,  and  (3)  which  relate  to  the 
court  itself  or  the  governmental  machinery  of  which 
it   is    a   part. 

disease  among  peach  trees  known  as  "peach  yellows,"  and  of  its  se- 
rious character.  resuUing  in  the  premature  death  of  the  trees  affect- 
ed.    This  illustrates  t'ie  recognition  of  local  conditions  in  nature. 

The  Klihn  Thompson  (D.  C.)  139  Fed.  89,  where  the  court  took  ju- 
dicial notice  of  the  -intimate  commercial  relations  existing  between 
the  ports  of  Puget  Sound  and  Alaskan  ports,"  and  made  this  fact 
the  basis  of  an  inference  that  the  highest  rate  of  wages  paid  to  sea- 
men at  Nome  was  not  less  than  the  usual  rate  paid  at  Tacoma. 

Denegre  v.  Walker,  114  111.  App.  234,  where  the  Appellate  Court 
took  judicial  notice  of  the  fact  that  many  buildings  in  the  business 
center  of  Chicago  are  erected  under  long-term  leases.  For  an  ex- 
treme case  of  local  application  of  doctrine,  see  Hauns  v.  Central  Ky. 
Lunatic  Asylum.   103  Ky.  562,  4.5  S.  W.  890. 

16  A  verv  apt  illustration  of  this  is  found  in  the  following  case: 
United  States  v.  Strauss  Bros.  &  Co.  (1905)  136  Fed.  185,  69  C.  C. 
A.  201.  Upon  a  question  of  whether  the  classilicaticu  of  ping-pong 
balls  as  toys  was  proper,  the  United  States  Circuit  Court  of  Appeals 
held  that,  though  no  evidence  had  been  introduced  as  to  the  nature 
of  the  game  of  ping-pong,  '"we  cannot  close  our  eyes  to  the  fact  that 
the  game  of  ping-pong  is  ordinarily  played  on  a  table  which  is  of 
such  a  height  that  it  would  be  difficult  for  children  to  play  the  game; 
that  it  is  the  game  indulged  in  by  adults,  and  one  which  requires 
a  degree  of  skill  not  ordinarily  posse.-sed  by  children  :  and  that  ping- 
pong  balls  are  sold  in  stores  where  athletic  goods,  such  as  footballs, 
baseballs,  tennis  balls,  and  golf  balls  are  sold." 


28  JUDICIAL   NOTICE.  (Ch.  2 

With  respect  to  this  class  of  facts  the  statement  of  the  rule  is 
virtually  saying  that  what  is  required  to  be  judicially  noticed 
must  be  judicially  noticed,  and  merely  explains  the  two  sources 
of  the  authority  by  which  it  is  required.  It  will  be  seen  that, 
while  the  determination  whether  any  particular  matter  comes 
within  the  terms  of  a  statute  may  be  comparatively  easy,  the 
question  of  whether  it  is  required  to  be  judicially  noticed  by  any 
rule  of  the  common  law  may  present  much  difficulty.  Once 
determined,  however,  to  come  within  either  rule,  it  is  taken  out 
of  the  realm  of  discretion. 

Before  passing  to  an  examination  of  the  more  prominent  in- 
stances in  which  statutes  or  the  common  law  require  judicial 
notice  to  be  taken,  it  will  be  well  to  inquire  whether  there  are 
not  some  reasons  upon  which  the  statutes  or  the  rules  of  the 
common  law  are  based. 


SAME— REASON   OF  RULE. 

18.    Two  principles  seem,  in  a  loose  way,  to  be  at  the  bottom 
of   tlie   statutes   and   decisions: 

(a)  The  court,  as  a  part  of  the  government,   should  notice, 

without    proof,    facts    of   governmental    concern. 

(b)  The  court,  as  composed  of  intelligent  beings,   should  ex- 

ercise that  intelligence  in  the  ordinary  way,  and  take 
as  true,  without  proof,  what  is  matter  of  universal 
knowledge— knowledge  in  accordance  with  which  all 
men  conduct  their  daily  affairs  and  regulate  their 
lives. 

"The  administration  of  justice  is  carried  on  by  the  sovereign. 
The  sovereign,  in  the  lapse  of  time,  has  lost  something  of  his 
concreteness,  if  he  has  not  become  a  mere  political  expression. 
But,  when  the  king  long  ago  sat  personally  in  court,  and  in 
later  times,  when  judicial  officers  were,  in  a  true  and  lively 
sense,  the  representatives,  and  even  were  deputies,  of  the  king, 
it  was  an  obvious  and  easily  intelligible  thing  that  courts  should 
notice  without  evidence  whatever  the  king  himself  knew  or  did 
in  the  exercise  of  any  of  his  official  functions,  whether  directly, 
or  through  other  high  officers." 

17  Thayer,  3  Harv.  Law  Rev.  p.  303. 


§  19)  FACTS    REQUIRED   TO   BE    NOTICED.  29 

It  is  equally  intelligible  and  sensible  that  the  courts  to-day — a 
co-ordinate  branch  of  the  government— should  notice,  \Yithout 
proof,  governmental  acts  and  relations,  and  other  matters  of 
governmental  concern,  satisfactory  proof  of  which,  if  not  al- 
ready known,  is  within  easy  reach  of  the  courts,  but  which 
would  be  difficult  for  litigants  to  prove  in  accordance  with  the 
rules  of  evidence.  These  are  the  sort  of  matters  to  which  the 
statutes  requiring  judicial  notice  to  be  taken  mainly  relate. ^^ 

As  to  the  second  principle,  that  involving  the  element  of  uni- 
versal knowledge,  it  is  so  clearly  founded  on  common  sense  and 
true  public  policy  that  it  immediately  commends  itself  to  the 
mind. 

It  is  a  broad  principle,  and  has  not  always  been  satisfactorily 
applied  in  the  decisions  which  have  defined  the  matters  of  which 
the  courts  must  take  judicial  notice;  but,  if  not  applied  as 
consistently  or  as  generally  as  it  should  have  been,  it  is  none 
the  less  the  principle  upon  which  the  decisions  rest. 

SAME— BY  STATUTE. 

19.  The  facts  required  to  be  judicially  noticed  by  statute  are 
mainly  of  one  kind,  viz.:  Facts  ^vbich  are  matters  of 
record,  sucb  as  the  statutes  themselves,  or  matters  of 
a  formal  nature,  having  to  do  with  the  requirements 
of  the  statutes,  as  the  acts  of  public  officers  or  per- 
sons in  semipublic  positions;  such  facts  as  are  un- 
likely to  be  disputed,  and  yet  which  are  difficult  of 
regular  proof. 

In  some  of  the  states  all  acts  of  the  Legislature,  public  or 
private,  are  required  by  statute  to  be  judicially  noticed.^^ 

18  In  a  little  book  by  McKinnon,  published  in  1812,  called  "Phi- 
losophy of  Evidence,"  which  is  one  of  the  few  in  which  the  subject 
of  judicial  notice  is  intelligently  treated,  it  is  said  (page  32) :  "Courts 
of  justice,  as  the  organ  of  government,  particularly  those  sitting  in 
Westminster  Hall,  'where  the  king  himself  originally  presided,'  are 
cognizant  of  a  variety  of  facts,  for  which  no  evidence  is  required 
in  indenture  cases."  And  again  (page  37) :  "Courts  of  law,  there- 
fore, as  constituting  part  of  the  government  of  the  country,  are  cogni- 
zant of  its  acts  privy  to  the  foregoing  matters  of  evidence,  as  fall- 
ing under  their  own  immediate  observation." 

19  See  Mullan  v.  State,  114  Cal.  578,  46  Pac.  670.  34  L.  R.  A.  262, 


30  JUDICIAL   NOTICE.  (Ch.  2 

Statutes  have  long  existed  in  the  United  States  and  in  Eng- 
land providing  that  certain  facts  as  to  acts  of  the  different  de- 
partments of  the  government  and  various  officials  thereof 
should  be  taken  as  true  without  proof.  It  is  a  common  thing 
that  official  acts  and  proceedings  may  be  considered  proved 
upon  the  production  of  reports  of  them  contained  in  certain 
specified  newspapers. 

In  England  the  different  acts  passed  from  time  to  time,  and 
known  as  "Documentary  Evidence  Acts,"  eliminate  much  from 
the  realm  of  positive  proof.  Proclamations,  orders,  and  regu- 
lations of  the  difi'erent  departments  of  government,  proceedings 
in  the  houses  of  Parliament,  and  proclamations,  treaties,  and 
acts  of  state  of  foreign  countries,  are  all  required  to  be  taken 
as  true  upon  the  production  of  certain  sorts  of  reports  and  cop- 
ies. Such /reports  and  copies  are  at  least  semiofficial,  and  there- 
fore have  some  guaranty  of  correctness.  These  reports  and 
copies  are  in  no  sense  proof,  but  rather  are  to  bring  to  the  mind 
of  the  court  that  of  which  it  is  assumed  to  have  knowledsfe.^*' 

It  is  often  provided  that  "no  proof  shall  be  required  of  the 
handwriting  or  official  position  of  any  person  certifying,  in 
pursuance  of  the  act,  to  the  truth  of  any  copy  or  extract  from 
any  proclamations  or  regulations.-^ 

The  statutes  passed  from  time  to  time,  both  in  the  various 
states  and  in  England,  have  brought  within  the  scope  of  judi- 
cial notice  the  seals  and  signatures  of  many  public  officers,  de- 
partments of  government,  courts,  judges,  and  public  and  private 
corporations.^^ 

for  reference  to  the  California  statute  which  requires  notice  to  be 
talien  of  all  public  or  private  acts  of  the  legislative,  executive,  and 
judicial  departments  of  state.  The  Constitutions  or  general  laws 
of  certain  slates  provide  that  evei-y  statute  shall  be  deemed  public, 
unless  otherwise  declared  in  the  statute  itself.  This  is  so  iu  Indi- 
ana. Rhode  Island,  and  Oregon.  In  such  cases  the  courts  are  bound 
to  take  judicial  notice  of  all  statutes.  Foley  v.  Ray,  27  R.  I.  127, 
01  Atl.  .50. 

2  0  Taylor,  Ev.  §  ],~)23. 

21  Documentaiy  Evidence  Act  J8GS.  §  2.  as  amended  in  1892.  By 
St.  1.3  &  14  Vict.  c.  21,  §  7,  it  was  provided  that  every  act  of  Par- 
liament after  that  date  (18.51)  should  be  declared  a  public  act,  and 
should   he  judicially   noticed. 

22  Only  a  few  of  the  statutes  of  this  nature  need  be  referred  to- 


§§  20-21)  FACTS   REQUIRED    TO    BE    NOTICED.  31 

An  example  of  the  extension  of  the  principle  by  a  rule 
adopted  by  the  court  is  found  in  England.  It  is  provided  that 
in  the  proof  of  examinations,  affidavits,  declarations,  affirma- 
tions, etc.,  taken  in  foreign  parts,  in  suits  before  judges,  courts, 
notaries  public,  or  persons  lawfully  authorized  to  administer 
oaths,  ''the  judges  and  other  officers  of  the  high  court  shall  take 
judicial  notice  of  the  seal  or  signature,  as  the  case  may  be,  of 
any  such  court,  judge,  notary  public,  or  person  lawfully  au- 
thorized to  administer  oaths. ^^ 


SAME— BY  COMMON  LAW. 

20.  Tlie  facts  wliich,  by  reasosi  of  tlie  common  la^xr  or  the  es- 
tablished practice  of  courts,  •will  be  noticed  \iritliout 
proof,  are  zuucli  more  varied  in  character  than  tliose 
required  by  statute  to  be  noticed.  They  may,  in  a 
loose  way,  be  classified  as  folloivs: 

(a)  Matters  relating  to  the  government  of  v^hich  the  court 

is   a   part,    or  matters   of   governmental    concern; 

(b)  Matters   relating   to    the   phenomena    of   nature,    and   to 

the    physical    sciences; 

(c)  Matters    relating    to    the    customs,    habits,    actions,    and 

lives  of  mankind.  The  court  may  or  may  not  notice 
facts  of  this  character;  it  remaining  in  the  discretion 
of  the  court. 


MATTERS  RELATING  TO  THE  GOVERNMENT. 

21.  Courts  are,  by  the  common  law,  primarily  bound  to  no- 
tice the  nature  and  constitution  of  the  government 
of  w^liich  they  form  a  part,  the  system  under  w^hich 
they  are  established,  and  their  own  po^vers  and  juris- 
diction. These  are  matters  upon  vt'hich  the  assump- 
tion to  act  in  a  judicial  capacity  is  based,  and  are  not 
subject  to  dispute.-* 

as  example  of  the  class :  Documentary  Evidence  Act  1845  (St.  8  & 
9  Vict.  c.  113) ;  Rev.  St.  U.  S.  §  905  [U.  S.  Comp.  St.  1901.  p.  677] ; 
Pub.  St.  Mass.  c.  109.  §  67;    Code  Civ.  Proc.  N.  Y.  §  921  et  seq. 

2  3  Order  28  of  the  rules  of  the  Supreme  Court  (1SS.3)  ;  Taylor.  Ev. 
§  12. 

2iAs  to  the  holding  of  Parliament:  Rex.  v.  Wilde,  1  Lev.  296; 
Birt  V.  Rothwell,  1  Ld.  Raym.  210,  343.  As  to  the  extent  of  a  judi- 
cial district:     Boggs  v.  Clark,  37  Cal.  236.     As  to  congi-essional  dis- 


32  JUDICIAL  NOTICE.  (Ch.  2 

As  to  matters  relating  to  the  government,  much  is  of  a  char- 
acter similar  to  that  which  has  become  the  subject  of  statutory 
provisions.  The  same  reasons  which  have  led  to  the  enactment 
of  statutes  requiring  judicial  notice  to  be  taken  have  influ- 
enced courts  in  determining  that  certain  matters  not  covered  by 
statutory  provision  should  be  noticed. 

As  to  matters  of  governmental  concern,  it  has  already  been 
mentioned  ^^  that  the  origin  of  the  rule  lay  in  the  identity  of 
the  judiciary  with  the  sovereign.  The  system  long  ago  devel- 
oped beyond  and  away  from  this  idea,  and,  while  it  was  the 
origin,  it  is  no  longer  the  reason  for  the  application,  of  the 
principle  of  judicial  notice  in  matters  of  this  sort.  Nor  does 
the  reason  lie  in  any  theory  of  notoriety,  strictly  speaking. 
In  fact,  in  most  cases  the  very  opposite  of  notoriety  exists.  The 
facts  judicially  noticed  are  quite  likely  to  be  facts  which, 
while  easily  ascertainable  from  public  documents  and  reports, 
are  generally  unknown.  Perhaps  it  would  be  as  near  the  truth 
as  anything  to  say  that  the  courts  notice  without  proof  these 
matters,  on  the  general  ground  of  public  policy.  It  would 
scarcely  befit  the  dignity  of  the  judicial  tribunal  to  permit  dis- 
pute, and  require  ordinary  proof,  as  to  the  nature,  fJosition,  and 
acts  of  the  government  of  which  it  is  a  vital  part ;  and  it  would 
be  equally  unjust  to  litigants,  who  in  many  instances  would 
be  utterly  unable  to  prove  the  facts  by  the  sort  of  evidence  re- 
quired in  the  proof  of  ordinary  facts.  These  reasons,  com- 
bined with  the  small  chance  of  mistake  in  relying  upon  the 
source  of  information  open  to  the  court,  probably  explain  the 
position  of  the  court  in  respect  to  this  phase  of  the  subject  of 
judicial  notice. 

It  goes  without  saying  that  the  court  must  notice  the  provi- 
sions of  the  Constitution  of  the  state,  as  well  as  any  amend- 
ments.-^ 

tricts:  U.  S.  v.  Johnson,  2  Sawy.  482,  Fed.  Cas.  No.  15,488;  State 
V.  Ray,  97  N.  C.  510,  1  S.  E.  876.  As  to  the  political  party  called 
"Republican" :  State  v.  Downs,  148  Ind.  324,  47  N.  E.  670.  As  to 
an  international  custom:  The  Paquete  Habaua,  175  U.  S.  677,  20 
Sup.  Ot  290,  44  L.  Ed.  320. 

2  0  Ante,  p.  28. 

28  Carmody  v.  St.  Louis  Transit  Co.,  188  Mo.  572,  87  S.  W.  913. 
\Vho  are  the  state  officials  will  be  noticed.  Bailey  v.  McAlpin,  122 
Ga.  616,  50  S.  E.  388. 


§  22)  FACTS  REQUIRED  TO   BE   NOTICED.  33 

The  geographical  boundaries  and  the  political  divisions  of  the 
country  also  come  under  this  head.  The  division  of  a  state 
into  counties  and  towns  are  judicially  noticed. ^^ 

In  an  action  for  trespass  on  land  in  Ware  county,  A.,  to  prove 
ownership,  offers  a  deed  describing  a  certain  lot  situated  in 
Appling  county.  The  court  should  judicially  notice  the  fact 
that  a  portion  of  Appling  county  was  created  into  a  new  county, 
called  Ware,  and  that  the  land  described  in  the  deed  is  included 
within  that  portion.^* 


22.  Other  matters  of  governmental  concern,  wMcli  the  conrts 
are  bound  to  notice  without  proof,  are  the  acts  of  the 
legislative  branch  of  the  government;  i.  e.,  the  stat- 
utes. 

Very  often  the  authority  for  judicially  noticing  the  statutes 
is  found,  as  has  been  heretofore  noticed,  in  the  statutes  them- 
selves. Sometimes,  however,  the  statutes  are  silent  on  the  sub- 
ject.    Nevertheless  the  common-law  rule  is  equally  binding 

27  state  V.  Simpson,  91  Me.  S3,  39  Atl.  287 ;  Board  of  Commis- 
sioners of  Jaclison  County  v.  State,  147  lud.  476,  46  N.  E.  908; 
Bartholomew  v.  First  Nat.  Bank,  18  Wash.  683,  52  Pac.  239;  Rich- 
ardson V.  Hedges,  150  Ind.  53,  49  N.  E.  822;  Winnlpiseogee  Lal^e 
Co.  V.  Young,  40  N.  H.  420;  Commonwealth  v.  Desmond,  103  Mass. 
445;  Smitha  v.  Flournoy's  Adm'r,  47  Ala.  345;  Money  v.  Turnip- 
seed,  50  Ala.  499 ;  People,  to  Use  of  Town  of  Highland,  v.  Suppiger, 
103  111.  434;  Town  of  La  Grange  v.  Chapman,  11  Mich.  499;  Stod- 
dard V.  Sloan,  65  Iowa,  680,  22  N.  W.  924 ;  Boston  v.  State,  5  Tex. 
App.  383,  32  Am.  Rep.  575 ;  Gilbert  v.  Manufacturing  Co.,  19  Iowa, 
319 ;  U.  S.  V.  Jackson,  104  U.  S.  41,  26  L.  Ed.  651 ;  Thorson  v.  Pe- 
terson (D.  C.)  9  Fed.  517;  Sever  v.  Lyons,  170  111.  395,  48  N.  E. 
926;  Bishop  v.  Insurance  Co.,  85  Mo.  App.  302.  But  the  court  will 
not  judicially  notice  the  population  of  a  county,  except  as  it  may 
be  a  matter  of  public  record.  Adams  v.  Elwood,  176  N.  Y.  106.  68 
N.  E.  126.  In  Missouri  it  has  been  held  township  lines  will  not  be 
noticed.     Mayes  v.  Railroad  Co.,  71  Mo.  App.  140. 

Certain  facts  of  a  geographical  nature,  of  purely  local  importance, 
the  court  will  not  notice;  for  example,  it  will  decline  to  judicially 
notice  exactly  where  a  two-mile  limit  from  the  city  of  Seattle  would 
lie.  Town  of  West  Seattle  v.  Improvement  Co.,  38  Wash.  359,  80 
Pac.  549;    Slattery  v.  Harley,  58  Neb.  575,  79  N.  W.  151. 

2  8  Stanford  v.  Bailey,  122  Ga.  404,  50  S.  E.  161. 

M'KELV.EV.(2d  ED.)— 3 


34  JUDICIAL   NOTICE.  (Ch.  2 

on  the  court,  and  requires  that  legislative  acts  of  a  public  nature 
be  noticed. 

The  statutory  law  is  a  part  of  the  system  of  law  which  the 
courts  administer,  and  is  spoken  of  as  distinguished  from  the 
common  law,  which  is  the  other  part  of  the  system.  Right  here 
a  confusion  has  arisen.  It  is  generally  said  that  the  courts  will 
judicially  notice  both  the  common  and  statute  law.^^ 

What  is  really  meant  is  that  they  will  notice  the  fact  of  the 
existence  of  the  statutes  and  the  existence  of  their  own  deci- 
sions.^" 

It  may  take  a  process  of  reasoning,  or  several  of  them,  to  de- 
termine what  either  the  statute  law  or  the  common  law  is 
with  reference  to  any  particular  subject;  for  statutes  must  be 
interpreted,  and  decisions  frequently  conflict.  Where  legal 
reasoning  begins,  there  judicial  notice  ends,  and  the  courts  ex- 
ercise another,  but  not  less  important,  function. 

The  statutes  which  the  courts  under  the  common-law  rule 
notice  without  proof  are  confined  to  those  statutes  of  their  own 
country  or  state  which  may  fairly  be  called  public  statutes. ^^ 

29Tayl.  Ev.  §  5;  Steph.  Dig.  Ev.  (Chase's  Ed.)  p.  117,  and  note; 
Best,  Ev.  (Chamberlayne's  Ed.)  p.  2.53. 

30  Allen  V.  Swoope,  64  Ark.  576,  44  S.  W.  78. 

31  Whether  a  statute  be  a  public  act  is  sometimes  a  question  of 
difficulty.  Its  character  as  such  is  usually  determined  by  the  ex- 
tent to  which  it  affects  the  people  in  general.  If  it  defines  or  reg- 
ulates the  right  of  an  entire  community,  or  all  the  inhabitants  of  a 
particular  county  or  locality,  though  it  does  not  relate  to  the  whole 
people,  it  is  deemed  a  public  statute.  Rains  v.  City  of  Oshkosh,  14 
Wis.  40''.;  Burnhara  v.  Webster,  5  Mass.  2G6 ;  Fierce  v.  Kimball,  9 
Greenl.  (Me.)  54,  23  Am.  Dec.  537.  It  is  on  this  principle  that  acts 
incorporating  municipal  corporations  are  judicially  noticed.  City 
Council  of  Montgomery  v.  Wright.  72  Ala.  411.  47  Am.  Rep.  422; 
Payne  v.  Treadwell,  16  Cal.  221 ;  State  v.  Mayor,  etc.,  of  Muvfrecs- 
boro,  11  Humph.  (Tenn.)  217:  Beasley  v.  Town  of  Beckley,  28  W. 
Va.  81;  Town  of  All)ion  v.  Iletrick.  90  Ind.  .54.',  46  Am.  Rep.  230; 
Beople  V.  Potter,  35  Cal.  110;  Village  of  Winooski  v.  Gokey,  49  Vt. 
282;  Stier  v.  City  of  Oskaloosa,  41  Iowa,  3.53;  Prell  v.  McDonald, 
7  Kan.  420.  12  Am.  Rep.  423;  State  ex  rel.  Oddle  v.  Sherman,  42  Mo. 
210;  Gallagher  v.  State,  10  Tex.  App.  469;  Alexander  v.  City  of  Mil- 
waiikee,  16  Wis.  247 ;  Wampler  v.  State,  148  Ind.  557,  47  N.  E.  106S, 
38  L.  R.  A.  820;  Town  of  Central  Covington  v.  Weighans,  44  S.  W. 
985,  19  Ky.  Law  Rep.  1979. 


§  22)  FACTS   REQUIRED   TO    BE   NOTICED.  35 

Special  acts  of  Congress  will  not  be  noticed  by  state  courts.^ - 

Where  the  validity  of  a  statute  depends  upon  ratification  by 
a  majority  of  electors,  the  court  will  inform  itself  of  the  num- 
ber of  votes  cast  and  the  result  of  the  vote  from  the  office  of  the 
Secretary  of  State  or  any  safe  means. ^^ 

Private  acts  are  not  noticed,  unless  special  statutory  provi- 
sions require  them  to  be ;  ^*  but,  where  the  statutes  themselves 
are  declared  by  the  Legislature  to  be  public  acts  at  the  time  of 
their  enactment,  they  will  be  judicially  noticed.^" 

The  principle  does  not  extend  to  municipal  ordinances.  ^* 
Courts  will  not  judicially  notice  who  the  officers  of  a  munic- 
ipal corporation  are,  or  when  they  change,^^  unless  the  matter 
arises  in  a  municipal  court,  which  will  notice  the  acts  of  the 
administrative  and  executive  branches  of  the  municipal  govern- 
ment, upon  the  same  principle  that  the  state  courts  notice  the 
acts  of  the  corresponding  branches  of  the  state  government.^ ^ 

An  appellate  court  will  notice  judicially  whatever  the  court 
of  original  jurisdiction  is  bound  to  notice. ^^ 

32  Denver  &  R.  G.  R.  Co.  v.  United  States,  9  N.  M.  389,  54  Pac. 
336. 

33  State  ex  rel.  Marr  v.  Stearns,  72  Minn.  200,  75  N.  W.  210. 

34  Rudd  V.  Banlv  of  Owensboro,  105  Ky.  443,  49  S.  W.  971.      ' 

3  5  Hammett  v.  Railroad  Co.,  20  Arlj.  204;  Doyle  v.  Village  of  Brad- 
ford, 90  111.  416;  Eel  River  Draining  Ass'n  v.  Topp,  16  Ind.  242; 
Covington  Drawbridge  Co.  v.  Shepherd,  20  How.  (U.  S.)  227,  15  L. 
Ed.  89G ;  Beaty  v.  Knowler,  4  Pet.  (U.  S.)  152,  7  L.  Ed.  813 ;  Singer 
Mfg.  Co.  V.  Bennett,  28  W.  Va.  16 ;  Collier  v.  Baptist  Education  Soc, 
8  B.  IMon.  (Ky.)  68. 

The  charter  of  a  railway  company  has  generally  been  held  a  pri- 
vate act.  Jersey  City  v.  Railway  Co.,  70  N.  J.  Law,  360,  57  Atl.  445. 
But  see  International  &  G.  N.  R.  Co.  v.  Hall,  35  Tex.  Civ.  App.  54.5,  81 
S.  W.  82. 

36  City  of  New  York  v.  Trust  Co.,  104  App.  Div.  223,  93  N.  Y.  Supp. 
937 :  Gibbs  v.  City  of  Manchester,  73  N.  H.  265,  61  Atl.  128 ;  Chit- 
tenden V.  Columbus,  26  Ohio  Cir.  Ct.  R.  531;  Mcintosh  v.  City  of 
Pueblo,  9  Colo.  App.  460,  48  Pac.  969;  Stittgen  v.  Rundle,  99  Wis. 
78,  74  N.  W.  586;  O'Hare  v.  Lieb.  66  111.  App.  549;  Baumann  v. 
Granite  Co.,  66  Minn.  227,  68  N.  W.  1074. 

37  State  v.  Brown,  72  Mo.  App.  651. 

38  City  of  Portland  v.  Yick,  44  Or.  4.39,  75  Pac.  706.  102  Am.  St. 
Rep.  633. 

ssTischner  v.  Rutledge,  35  Wash.  285,  77  Pac.  388;  City  of  Port- 
land v.  Yick,  44  Or.  439,  75  Pac.  706,  102  Am.  St.  Rep.  633.     In  the 


36  JUDICIAL   NOTICE.  (Ch.  2 

In  the  United  States  the  United  States  courts  take  judicial 
notice  both  of  United  States  and  all  state  statutes.*^ 

A.,  in  an  action  in  the  United  States  court  against  X.,  offers 
in  evidence  a  "duly  certified  notarial  copy"  of  a  bill  of  sale  of 
certain  slaves,  without  accounting  for  the  nonproduction  of 
the  original.  The  bill  of  sale  was  executed  in  Louisiana,  and 
according  to  the  laws  of  Louisiana  the  original  is  recorded  and 
kept  by  the  notary.  X.  objects  on  the  ground  that  the  original 
should  be  produced,  or  its  nonproduction  explained.  The 
court  will  take  judicial  notice  of  the  laws  of  Louisiana,  and  un- 
derstand, without  proof,  the  nonproduction  of  the  original.*^ 

United  States  courts  will  not,  however,  notice  the  laws  of 
the  Indian  tribes.*^ 

There  has  been  some  inclination  on  the  part  of  the  United 
States  courts  to  bring  the  English  statutory  and  common  law 
Avithin  the  field  of  judicial  notice,  or  at  least  to  be  satisfied  with 
the  same  sources  of  information  (under  the  name  of  proof) 
which  would  be  resorted  to  in  the  case  of  matter  of  similar 
character  to  which  the  doctrine  is  applicable. 

For  example,  A.  makes  a  contract  with  X.,  in  Prince  Edward 
Island,  to  take  charge  of  X.'s  ship  Pawashick  as  captain.  A. 
subsequently  libels  the  ship  for  his  wages.     The  laws  of  Eng- 

latter  case,  on  an  appeal  from  a  municipal  court,  it  was  held  that, 
as  such  court  was  bound  to  take  judicial  notice  of  municipal  ordi- 
nances,  the  appellate  court  would  also  take  notice. 

4  0Elmendorf  v.  Taylor,  10  Wheat.  (U.  S.)  152,  6  L.  Ed.  289;  The 
Scotia,  14  Wall.  (U.  S.)  171,  20  L.  Ed.  822.  The  Circuit  Courts,  as 
well  as  the  Supreme,  are  bound  to  take  notice  of  the  statutes  of  all 
the  states,  without  regard  to  where  they  are  sitting.  Merrill  v.  Daw- 
son. Hempst.  .50.3,  Fed.  Cas.  No.  9,469;  Jones  v.  Hays.  4  McLean,  .521, 
Fed.  Cas.  No.  7,467;  Carpenter  v.  Dexter,  8  Wall.  (U.  S.)  515,  19  L. 
Ed.  42C;  Fourth  Nat.  Bank  v.  Francklyn.  120  U.  S.  747,  7  Sup.  Ct. 
757,  30  L.  Ed.  825 ;  U.  S.  v.  Turner,  11  How.  (U.  S.)  663,  13  L.  Ed. 
857;    Miller  v.  McQuerry,  5  McLean,  469.  Fed.  Cas.   No.  9,583. 

*iOwings  V.  Hull  (1835)  9  Pet.  (U.  S.)  607,  9  L.  Ed.  246. 

4  2  Wilson  V.  Owens,  86  Fed.  571,  30  C.  C.  A.  257.  The  court  here 
says:  "This  court  does  not  have  convenient  access  to  books,  local  de- 
cisions, or  official  documents  which  would  enable  it  to  determine  with 
certainty  what  are  the  laws  of  these  tribes  on  various  subjects,  and 
we  apprehend  that  the  United  States  courts  sitting  in  the  Indian 
Territory  are  confronted  in  a  measure  at  least  with  the  same  diffi- 
culty." 


§  22)  FACTS   REQUIRED  TO   BE   NOTICED.  37 

land  as  to  the  rights  of  the  captain  against  the  ship  become  ma- 
terial, and  the  question  is  as  to  how  they  shall  be  proved. 
Judge  Lowell  cites  with  approval  the  rule  laid  down  by  Lord 
Stowell  in  Dalrymple  v.  Dalrymple,*'  that  there  were  three 
sources  of  proof:  (1)  Opinions  of  learned  professors ;  (2) 
opinions  of  eminent  writers,  as  delivered  in  books  of  great  legal 
credit  weight;  and  (3)  the  certified  adjudications  of  the  tri- 
bunals of  Scotland— and  says:  "I  believe  the  rule  thus  an- 
nounced is  the  true  rule  for  this  court  in  respect  to  English  law. 
[The  case  deals  with  English  law  alone.]  *  *  *  In  respect 
to  the  laws  of  France,  Germany,  or  Russia,  or  any  other  coun- 
try which  has  a  wholly  different  system  from  our  own,  I 
should  be  inclined  to  say  that  the  rigid  rule  might  be  better."  ** 

The  state  courts  notice  statutes  and  public  acts  of  their  own 
state  and  of  the  general  government,  but  not  of  other  states.*^ 

The  following  case  well  illustrates  this  rule :  A.  brings  ac- 
tion against  X.,  a  railway  company,  for  the  death  of  C.  The 
accident  happened  in  a  state  other  than  that  in  which  the  ac- 
tion is  brought,  and  in  which  state  a  special  statutory  provision 

43  2  Hagg.  Consist.  54,  81. 

44  The  Pawashick  (1872)  2  Lowell,  142,  Fed.  Cas.  No.  10,851.  Ac- 
cording to  this  case  the  contrary  rule  is  based  on  Baron  de  Bode's 
Case,  8  Q.  B.  208,  24G ;  Sussex  Peerage  Case,  11  Clark  &  F.  85,  114. 
What  these  cases  actually  decided  was  tliat  a  scientific  witness  may 
testify  to  the  written  foreign  law,  with  or  without  the  text  of  the 
law  before  him ;  the  value  of  the  evidence  resting  in  the  soundness 
of  his  opinion,  and  the  court  not  being  supposed  competent  to  crit- 
icise it  by  any  comparison  with  the  books. 

4BKessel  v.  Albetis,  56  Barb.  (N.  Y.)  3G2 ;  Morris  v.  Davidson,  49 
Ga.  361;  Chesapeake  &  O.  Canal  Co.  v.  Railroad  Co.,  4  Gill  &  J. 
(Md.)  1,  63 ;  Mims  v.  Swartz,  37  Tex.  13 ;  Bird  v.  Com.,  21  Grat. 
(Va.)  800;  McCarver  v.  Herzberg,  120  Ala.  523,  25  South.  3;  Teu- 
tonia  Loan  &  Building  Co.  v.  Turrell,  19  Ind.  App.  469,  49  N.  E.  852, 
65  Am.  St.  Rep.  419.  Where  a  state  law  has  been  incorporated  by 
implication  in  an  act  of  Congress,  the  court  of  another  state  will 
then  judicially  notice  it.  Flanigen  v.  Insurance  Co.,  7  Pa.  30G.  And 
it  is  generally  held  that  where  a  case  is  appealable  to  the  United 
States  Supreme  Court,  as  affecting  a  right  under  the  federal  Con- 
stitution, then  the  state  court  Mnll  take  the  same  notice  of  the  stat- 
utes of  another  state  as  the  United  States  Supreme  Court.  Shotwell 
v.  Harrison,  22  Mich.  410;  Saltar  v.  Applegate,  23  N.  J.  Law,  115; 
Paine  v.  Insurance  Co.,  11  R.  I.  411;  State  of  Ohio  v.  Ilinchman, 
27  Pa.  479;   Jarvis  v.  Robinson,  21  Wis.  523,  94  Am.  Dec.  560;   Butch- 


38  JUDICIAL   NOTICE.  (Ch.  2 

makes  X.  liable  without  proof  that  there  was  negligence.  A. 
does  not  allege  negligence,  but  relies  upon  the  special  statu- 
tory provision,  failing,  however,  to  allege  it  in  his  complaint. 
On  demurrer  A.  cannot  recover,  as  the  court  will  not  judi- 
cially notice  the  statute  of  the  other  state.*® 

But  state  courts  will  notice  the  statutes  of  a  sister  state,  when 
necessary  in  order  to  give  full  force  and  effect  to  the  judg- 
ment of  such  sister  state.*^ 

The  rule  that  state  courts  will  notice  acts  of  the  various  de- 
partments of  the  general  government  has  been  carried  to  the 
extent  of  including  post  ofHce  regulations.*^ 

As  to  their  own  and  the  decisions  of  other  courts  in  the  same 
jurisdiction,  the  courts  require  no  proof.  They  notice  them  as 
the  expression  of,  or  the  basis  from  which  they  may  by  legal 
reasoning  arrive  at,  the  principles  of  the  common  law.  These 
decisions  are  the  formal  acts  of  the  judicial  department  of  the 
government,  just  as  the  statutes  are  the  acts  of  the  legislative 
department.*® 

23.  As  to  tlie  practice,  the  rules,  the  proceedings,  and  doings 
of  other  courts  not  embodied  in  the  decisions  emanat- 
ing from  such  courts,  no  uniform  doctrine  ixrith  re- 
spect to  judicial  notice  has  been  evolved. 

As  examples  of  how  this  subject  has  been  treated,  it  has  been 
said  that  "an  appellate  court  will  notice  the  terms  of  the  circuit 
courts"  of  the  same  state  and  the  length  of  each  term.^*' 

er  V.  Bank  of  Brownsville,  2  Kan.  70,  83  Am.  Dec.  446.  It  is  inter- 
esting to  compare  this  with  the  illustrations  cited  in  the  text,  where 
the  Supreme  Court,  upon  appeal,  treated  as  a  matter  of  fact  admit- 
ted by  demurrer  the  allegation  as  to  the  law  of  a  sister  state,  though, 
if  it  had  come  before  it  in  the  first  instance,  it  would  have  been  the 
subject  of  judicial  notice. 

46  Myers  v.  Railway  Co.,  69  Minn.  476,  72  N.  W.  699,  65  Am.  St. 
Rep.  579. 

47  Hull  V.  Webb,  78  111.  App.  617. 

4  8  Carr  v.  First  Nat.  Bank,  35  Ind.  App.  216,  73  N.  E.  947,  111 
Am.    St.    Rep.   159. 

40  Swain  v.  Comstock,  18  Wis.  463,  466;  Wilson  v.  Bumstead,  12 
Neb.  1.  10  N.  W.  411 :  Hinde  v.  Vattier,  5  Pet.  (U.  S.)  398,  8  L.  Ed. 
168;    Pennin.crton  v.  Gibson,  16  How.  (U.  S.)  65,  81,  14  L.  Ed.  847. 

r-o  Indiana  Mut.  Building  &  Loan  Ass'n  v.  Paxton,  18  Ind.  App. 
304,  47  N.  E.  1082;    Soruton  v.  Hall,  6  Kan.  App.  714,  .50  Pac.  964. 


§  23)  FACTS   REQUIRED   TO   BE    NOTICED.  39 

An  appeal  undisposed  of  will  be  noticed  by  a  court  of  the 
same  jurisdiction.^^ 

That  a  question  involved  in  a  suit  has  been  before  the  courts 
at  a. previous  time  for  adjudication  will  be  noticed.^^ 

Courts  will  not  ordinarily  take  notice  of  their  own  records, 
outside  of  the  particular  case  before  them.^^ 

This  subject  belongs,  perhaps,  more  properly  under  the  head 
of  matters  which  may  in  the  discretion  of  the  courts  be  judi- 
cially noticed."* 

The  subject  of  how  far  the  statutory  and  common  law  is  in 
itself  the  subject  of  judicial  notice  is  one  which  has  not  always 
been  treated  with  lucidity  in  the  cases.  In  fact,  there  has  been 
a  tendency  to  regard  both  statutes  and  common-law  rules  as 
legitimate  material  for  the  application  of  the  doctrine,  without 
distinction  as  to  whether  they  have  been  called  in  question  in 
such  form  that  they  could  be  said  to  be  properly  a  part  of  the 
case,  or  have  simply  been  involved  as  governing  principles  to 
fix  the  rights  and  liabilities  of  the  parties  upon  the  case  as  pre- 
sented. There  is,  it  is  submitted,  a  very  clear  distinction  be- 
tween the  two  forms  in  which  statutes,  and  even  principles  of 
common  law,  may  become  material  in  a  case. 

In  the  one  form  the  court  may  properly  be  said  to  take  judi- 
cial notice  of  facts  which  are  a  material  part  of  the  case,  while 
in  the  other  it  does  not  in  any  sense  exercise  this  function,  but 
quite  another,  to  wit,  the  duty  of  interpreting  and  applying  the 
law  to  the  fact — the  law  which  is  the  source  and  reason  for  its 
existence  and  activity. 

The  distinction  may  be  illustrated  by  a  case  such  as  the  fol- 
lowing: The  sufficiency  of  a  chattel  mortgage  was  called  in 
question  on  the  ground  of  misdescription ;  the  property  being 
described  as  situated  in  township  20,  Butler  county,  and  it  be- 
ing alleged  that  said  township  was  not  in  said  county.  The 
court  judicially  noticed  the  fact  that  such  township  was  not  in 

51  McClain  v.  Williams.  11  S.  D.  GO,  75  N.  W.  391. 

52  Story  V.  Ulman,  88  Md.  244,  41  Atl.  120.  But  see  Anderson  v. 
Cecil,  86  Md.  490,  38  Atl.  1074. 

5  3  Gibson  v.  Buckner,  Go  Ark.  84,  44  S.  W.  1034;  Anderson  v.  Ce- 
cil, 86  Md.  490.  38  Atl.  1074;  In  re  Osborne,  115  Fed.  1,  52  a  O. 
A.  595. 

54  In  re  Osborne,  115  Fed.  1,  52  C.  C.  A.  595. 


40  JUDICIAL   NOTICE.  (Ch.  2 

the  county  stated,  because  the  boundary  of  the  county  was  fixed 
by  statute. 

It  then  proceeded  to  apply  the  rule  of  common  law,  "estab- 
lished by  a  long  line  of  adjudicated  causes,"  that  "it  is  essential 
to  the  validity  of  a  chattel  mortgage  that  there  be  certainty  in 
the  description  of  the  property  conveyed  by  it,  but  'id  certum 
est  quod  certum  reddi  potest,'  "  properly  treating  this  as  the 
mere  application  of  the  law,  and  not  as  judicial  notice. ^° 

On  the  other  hand,  an  illustration  of  a  confusion  of  ideas  on 
the  subject  is  found  in  Edelstein  v.  Schuler,^^  where  the  action 
was  by  A.  against  X.  for  value  of  certain  bonds  alleged  to  have 
been  converted. 

It  was  shown  that  the  bonds  were  made  payable  to  bearer, 
and  that  X.  was  a  bona  fide  purchaser  for  value.  The  court 
states  the  law  as  follows:  "Thus  it  had  been  found  conven- 
ient to  treat  securities  like  those  in  question  in  this  action  as 
negotiable,  and  the  courts  of  law,  recognizing  the  wisdom  of 
the  usage,  have  incorporated  it  in  what  is  called  the  'law  mer- 
chant,' and  have  made  it  a  part  of  the  common  law  of  the  coun- 
try." Then,  further  commenting :  "I  think  that  it  is  no  longer 
necessary  to  tender  evidence  in  support  of  the  fact  that  such 
bonds  are  negotiable  and  that  the  courts  of  law  ought  to  take 
judicial  notice  of  it."  °'' 


24.  Next  come  the  official  acts  of  tlie  executive  department, 
vrhicli  are  equally  the  subjects  of  judicial  notice. 
These  include  treaties,  proclamations,  executive  de- 
crees, and  the  recognition  of  foreign  poivers,  and  such 
facts  connected  therewith  as  their  national  seals  and 
flags. 

Whether  courts  will  notice  all  acts  of  state  departments  and 
officers  seems  questionable,  though  in  a  late  Mississippi  case  ^^ 

OB  City  National  Bank  v.  Ck)n]mission  Co.,  93  Mo.  App.  123.  See 
Matter  of  Hall,  Gl  App.  Dlv.  20G,  70  N.  Y.  Supp.  406,  for  a  treatment 
of  the  common-law  principle  in  both  forms. 

6  6  71  L.  J.  K.  B.  572. 

07  See,  also,  Hilton  v.  Roylance,  25  Utah,  129,  69  Pac.  GOO.  58  L. 
R.  A.  723,  95  Am.  St.  Rep.  821. 

08  Gulf  &  S.  I.  R.  Co.  V.  Adams,  85  Miss.  772,  38  South.  348. 


§    24)  FACTS    REQUIRED    TO    BE    NOTICED.  41 

the  court  judicially  noticed  that  a  railroad  was  assessed  during 
certain  years  upon  an  ad  valorem  basis  and  that  it  paid  the 
taxes ;  an  extreme  case,  it  would  seem,  and  hardly  representa- 
tive of  the  prevailing  view. 

The  general  method  adopted  by  the  state  officers  in  the  as- 
sessing of  property  for  taxation,  as  distinguished  from  an  in- 
dividual instance  such  as  the  foregoing,  might  well  be  the  sub- 
ject of  judicial  notice.^'' 

The  existence  and  form  of  all  sovereign  powers,  recognized 
as  such  by  the  executive  head  of  the  government,  are  judicially 
noticed  by  the  courts.  The  national  flag  and  seal  of  each 
power,  as  emblems  of  its  sovereignty,  are  recognized  by  all 
other  powers,  and  the  judicial  branch  of  each  government  joins 
in  the  recognition.*"^ 

The  courts,  however,  cannot  notice  the  flag  or  seal  of  a  gov- 
ernment which  has  not  been  recognized  by  the  executive,  even 
though  the  same  be  a  de  facto  government. ^^ 

In  Taylor  v.  Barclay  ®^  the  question  arose  on  demurrer  as 
follows :  A.  brings  an  action  against  X.  for  discovery.  "The 
bill  alleges  that  X.  represented  himself  to  be  the  agent  of  the 
federal  republic  of  Central  America,  which  was  a  sovereign  and 
independent  state,  recognized  and  treated  as  such  by  his  maj- 
esty the  king  of  these  realms."  Upon  a  demurrer  the  court  will 
take  judicial  notice  of  "public  matters  which  affect  the  govern- 
ment of  the  country,"  and  will  inform  itself  as  to  the  truth  of 
the  allegation  by  inquiry  of  the  foreign  office,  and  then  act  on 
such  information  without  regard  to  the  fact  as  alleged.®^ 

In  America  the  proclamations  of  the  President,^*  and  in  Eng- 

59  Wray  v.  Railroad  Co.,  113  Tenn.  .544,  82  S.  W.  471,  where  it 
was  held  that  "the  court  knows  judicially  and  as  a  part  of  the  finan- 
cial history  of  the  state  that  land  is  never  assessed  for  purposes  of 
taxation  at  its  real  cash  market  value." 

60  The  Santissima  Trinidad  St.  Auder,  7  Wheat.  (U.  S.)  283,  5  L. 
Ed.  454;  Griswold  v.  Piteaim,  2  Conn.  90;  Lincoln  v.  Battelle,  6 
Wend.  (N.  Y.)  476;  Schoerken  v.  Swift  &  Courtney  &  Beecher  Co. 
(0.  C.)  19  Blatchf.  209,  7  Fed.  469. 

61  U.  S.  V.  Palmer,  3  Wheat.  (U.  S.)  610,  4  L.  Ed.  471;  City  of 
Berne  v.  Bank  of  England,  9  Ves.  347 ;  Bolder  v.  Lord  Huntin^field, 
11  Ves.  283. 

62  (1828)  2  Sim.  213. 

6  3  Thompson  v.  Powles,  2  Sim.  194. 

64  Cuyler  v.  Ferrill,  1  Abb.  (U.  S.)  169,  Fed.  Cas.  No.  8,523 ;    The 


42  JUDICIAL   NOTICE.  (Ch.  2 

land  royal  proclamations,®^  are  judicially  noticed.  The  differ- 
ent states  notice  proclamations  of  their  respective  Governors,  as 
well  as  proclamations  of  the  President."®  Other  executive  acts, 
such  as  rules  prescribed  by  the  heads  of  different  depart- 
ments of  government,  are  noticed."'  Treaties,  whether  made 
with  foreign  governments,  or  with  Indian  tribes  within  the  bor- 
ders of  the  United  States,  are  the  subject  of  judicial  notice  both 
by  federal  and  state  courts."^ 

Passing,  now,  to  the  second  division  of  facts  of  which  courts 
are  bound  to  take  judicial  notice,  we  find  a  somewhat  different 
principle  for  the  application  of  the  rule,  namely,  that  of  uni- 
versal recognition. 


MATTERS  RELATING  TO  THE  PHENOMENA  OF  NATURE. 

25.  Certain  facts  in  nature  and  the  physical  sciences  are  so 
ivell  established,  and  have  become  so  much  a  part  of 
our  habits  of  thought  and  the  ordering  of  our  lives, 
that  no  one  disputes  them.  To  require  proof  of  them 
TO^ould  be  absurd.  The  judges  assume  these  facts,  just 
as  all  men  do,  and  act  and  think  in  accordance  \7ith 
them. 

Human  experience  is  made  up  of  a  vast  quantity  of  facts, 
incapable  of  dispute,  concerning  the  things  about  us.  We  as- 
sume such  facts  in  our  thoughts  and  actions,  and  it  would  be 
absurd  for  the  court  to  pretend  an  ignorance  of  them.  Most 
of  the  facts  which  are  thus  assumed  have  never  been,  and  never 

Greathouse  Case,  2  Abb.  (U.  S.)  382,  Fed.  Cas.  No.  5,741;  U.  S.  v. 
Fifteen  Hundred  Bales  of  Cotton,  10  Int.  Rev.  Rec.  382 ;  Armstrong 
V.  U.  S.,  13  Wall.  (U.  S.)  154,  20  L.  Ed.  G14. 

65  Wells  V.  Williams,  1  Ld.  Raym.  283,  1  Salk.  46;  Dupays  v. 
Shepherd,  12  Mod.  216 ;    Rex  v.  Sutton,  4  Maule  &  S.  532. 

6  0  Dowdell  V.  State,  58  lad.  333. 

6  7  Zevely  v.  Weimer,  5  Ind.  T.  646,  82  S.  W.  941,  949;  U.  S.  v.  Wil- 
liams, 6  Mont.  379,  12  Pac.  851 ;  Low  v.  Hanson,  72  Me.  104. 

The  United  States  Census  and  State  school  census  were  noticed  in 
Kokes  V.  State,  55  Neb.  691,  76  N.  W.  467. 

68  Montgomery  v.  Deeley,  3  Wis.  709;  Hauenstein  v.  Lynbam,  100 
U.  S.  483,  25  L.  Ed.  628 ;  Doe  v.  Braden,  16  How.  (U.  S.)  685,  14  L.  Ed. 
1090 ;  U.  S.  V.  The  Peggy,  1  Cranch  (U.  S.)  103,  2  L.  Ed.  49 ;  U.  S.  v. 
Payne  (D.  C.)  2  McCrary,  289,  8  Fed.  883 ;  Wilson  v.  Wall,  6  Wall.  (U. 


§  25)  FACTS    REQUIRED   TO   BE    NOTICED. 


43 


will  be,  the  subject  of  judicial  decision,  as  it  is  only  those,  which 
are,  as  it  were,  on  the  border,  concerning  which  any  question 
is  likely  to  arise.  To  take  a  concrete  example  of  what  is  meant, 
let  us  suppose  that  the  fact  to  be  proved  is  that  a  spark  from 
X.'s  engine  set  fire  to  A.'s  house ;  that  B.,  a  witness,  has  tes- 
tified that  he  saw  sparks  carried  by  the  wind  from  the  engine  to 
some  dry  leaves  about  the  house;  that  he  saw  M.  attempt  to 
pick  up  one  or  two  of  the  sparks,  and  hastily  drop  them,  on 
which  account  he  knew  them  to  be  hot.  It  would  be  manifestly 
ridiculous  to  require  proof  that  B.'s  eyes  were  the  normal  eyes 
of  a  human  being ;  that  the  eye  is  capable  of  receiving  certain 
impressions,  which  are  transmitted  by  means  of  the  optic  nerve 
to  the  brain,  resulting  in  the  phenomena  called  "sight" ;  that 
sight  is  one  of  the  senses  upon  which  man  is  obliged  to  rely  for 
his  knowledge  of  things  about  him.  It  would  be  equally  ridicu- 
lous to  require  proof  that  men  are  possessed  of  certain  nerves 
which  are  sensitive  to  heat  and  cold ;  that  extreme  heat,  when 
in  contact  with  these  nerves,  produces  a  painful  sensation ;  that 
it  is  the  habit  of  man  to  drop  or  let  go  of  a  thing  which  is  pro- 
ducing a  painfull  sensation.  These  are  all  facts  which  the  court 
must  assume,  to  make  use  of  the  facts  which  the  witness  is  per- 
mitted to  state. 

The  law  of  gravitation,  certain  qualities  and  properties  of 
matter,  the  nature  and  effects  of  heat,  cold,  light,  etc.,  are 
some  of  the  illustrations  of  such  facts.  The  time  the  sun  sets 
on  any  particular  day  has  been  held  not  to  be  the  subject  of 
proof.®  ^ 

In  Scanlan  v.  Railroad  Co.*  it  was  held  the  court  take  notice 
of  the  laws  of  nature,  and  that  the  principles  of  mathematics  are 
a  part  of  the  same,  and  how  the  contents  of  a  regular  prismoidal 
body  is  ascertained. 

The  division  of  time  into  days,  months,  and  years,  and  the 
coincidence  of  days  and  dates,  are  not  the  subject  of  proof, 

S.)  8.3,  18  L.  Ed.  727 :  Dole  v.  Wilson,  16  Minn.  525  (Gil.  472) ;  U.  S. 
V.  Revnes,  9  How.  (U.  S.)  127,  13  L.  Ed.  74;  Godfrey  v.  Godfrey,  17 
Ind.  6,  79  Am.  Dec.  448 ;  Myers  v.  Mathis,  2  Ind.  T.  3,  46  S.  W.  178. 

The  treaty  of  Paris  between  the  United  States  and  Spain  was  ju- 
dicially noticed  in  La  Rue  v.  Insurance  Co.,  68  Kan.  .509,  75  Pac.  494. 

6  9  Louisville  &  N.  R.  Co.  v.  Brinkerlioff,  119  Ala.  606,  24  South.  892, 

*55  Pac.  694  (Cal.). 


44  JUDICIAL    NOTICE.  (Cll.  2 

though  the  court  will  itself  refer,  or  permit  reference,  to  an 
almanac,  to  definitely  ascertain  the  facts. '^^ 

That  the  storage  of  large  quantities  of  fireworks  increases 
the  risk  from  fire  is  so  self-evident  as  to  be  outside  the  realm  of 
proof.''^ 

That  it  is  more  dangerous  to  be  on  the  running  board  of  a 
street  car  than  to  be  on  the  seat  or  on  the  platform  has  been 
judicially  assumed,  and  is  a  good  illustration  of  the  kind  of 
facts  above  referred  toJ^ 


MATTERS  RELATING  TO  LIVES  OF  MANKIND. 

Z5y2.  The  range  of  facts  of  whicli  the  courts  may,  in  their  dis- 
cretion, take  judicial  notice,  is  very  extensive;  but  un- 
derlying it  is  the  single  principle  of  common  notoriety, 
as  distinguished  from  universal  recognition. 

Common  law — that  is,  the  decisions  of  the  courts — has  estab- 
lished certain  classes  of  matters  which  the  courts  in  their  dis- 
cretion may  notice. 

In  passing  to  these  classes  of  things,  it  is,  in  the  first  place, 
noticeable  that  the  principle  of  common  notoriety,  above  re- 
ferred to,  exercises  a  large  influence  in  determining  the  action 
of  the  court.  The  court  is  intelligent.  It  is  cognizant  of  what 
is  notorious  in  the  community,  and  it  will  not  always  shut  its 
eyes  to  such  notoriety,  when  it  becomes  material  in  the  trial  of 
a  case.^3    While  common  notoriety  is  not  sufficient  to  place  a 

7  0  state  V.  Morris,  47  Conn.  180;  Rodgers  v.  State,  50  Ala.  102; 
Philadelphia,  W.  &  B.  R.  Co.  v.  Lehman,  56  Md.  209,  40  Am.  Rep.  415 ; 
Mcintosh  V.  Lee,  57  Iowa,  356,  10  N.  W.  895 ;  Curtis  v.  March,  4  Jur. 
(N.  S.)  1112. 

71  Betcher  v.  Insurance  Co.,  78  Minn.  240,  80  N.  W.  971.  See,  also. 
City  of  Chicago  v.  Murdoch,  113  111.  App.  650,  where  the  court  no- 
ticed that  the  use  of  dynamite  in  the  construction  of  a  tunnel  under 
a  populous  city  is  inherently  dang:erous. 

72  Bridges  v.  Electric  Ky.  &  Light  Co.,  86  Miss.  584.  38  South.  788. 
7  3  In  Consumers'  Gas  Trust  Co.  v.  Littler,  162  Ind.  326,  70  N.  E. 

365,  the  court  say:  "We  judicially  know  as  a  matter  of  common 
knowledge  that  gas  or  oil  does  not  exist  in  paying  quantities  under 
all  the  lands  within  the  recognized  district,  and  that  there  is  no  other 
generally  acknowledged  way  than  putting  down  a  well  to  determine 
whether  or  not  it  does  exist"— an  excellent  example  of  facts  of  purely 


§  25i)  FACTS    REQUIRED   TO    BE    NOTICED.  45 

fact  in  the  category  of  things  of  which  notice  must  be  taken, 
the  cases  show  that  courts  have  frequently  considered  them- 
selves justified,  by  reason  of  it,  in  dispensing  with  proof. 

There  are  dift'erent  sorts  of  notoriety.  A  fact  may  be  notori- 
ous in-  the  sense  that  it  is  a  universally  accepted  truth  in  some 
art  or  science.  Again,  a  fact  may  be  notorious  in  that  it  is 
present  in  the  minds  of  a  whole  community  at  the  same  time, 
though  in  a  month  or  a  year  it  may  be  forgotten.  The  former 
sort  of  notoriety  is  not  the  notoriety  of  which  we  speak  when 
we  are  talking  of  what  facts  the  courts  "may"  judicially  notice, 
as  distinguished  from  "must."  If  a  fact  is  so  generally  accepted 
and  known  as  a  truth  that  it  cannot  be  seriously  disputed,  such 
as  some  of  the  facts  of  nature,^*  or  of  human  life  and  action, 
such  notoriety  throws  it  with  the  things  of  which  the  court 
must  take  notice.  If  it  is  not  generally  accepted  and  known 
in  this  way,  and  is  not  a  fact  with  that  other  sort  of  notoriety 
which  makes  it  in  every  one's  mouth  at  the  same  time,  then  it  is 
not  a  fact  of  which  the  courts  either  must  or  may  take  notice. 
There  is  some  confusion  in  the  cases  in  respect  to  the  bearing 
of  notoriety  upon  the  scope  of  judicial  notice,  mainly  because 
the  word  is  used  in  this  double  sense.  "Notoriety,"  used  in  the 
first  sense,  is  not  notoriety,  but  universal  recognition. 

It  must  be  noticed  that  the  quality  of  universal  recognition  is 
not  a  quality  which  is  unalterably  attached  to  certain  facts.  In 
Galileo's  time  the  courts  must  have  judicially  noticed  that  the 
world  was  flat  and  immovable,  while  it  is  quite  certain  that  no 
one  at  present  would  be  put  to  proof  of  the  fact  that  the  world 
is  round  and  moves.  As  knowledge  advances,  and  facts  which 
were  only  known  to  the  scientist  become  the  common  property 

local  notoriety,  yet  quite  pi'operly  the  subject  of  judicial  notice  in  the 
courts  of  that  section.  See.  also.  State  ex  rel.  City  of  Indianapolis  v. 
Indianapolis  Gas  Co.,  163  Ind.  48,  71  N.  E.  139. 

7  4  In  Barr  v.  Cardiff,  32  Tex.  Civ.  App.  495,  75  S.  W.  341,  the  court 
judicially  noticed  that  rice  cannot  be  planted,  cultivated,  and  grown 
to  maturity  without  water,  and  cited  as  precedents  several  of  the 
leading  cases  on  this  subject:  Loeb  v.  Richardson,  74  Ala.  311,  where 
the  court  took  notice  of  the  date  of  maturity  of  the  cotton  crop; 
Floyd  V.  Ricks,  14  Ark.  286,  58  Am.  Dec.  374,  where  the  general  course 
of  agriculture  was  noticed;  Dixon  v.  Niccolls,  39  111.  372,  89  Am.  Dec. 
312,  where  facts  in  nature  of  unvarying  occurrence  were  held  to  be 
properly  noticed. 


46  JUDICIAL   NOTICE,  (Ch.  2 

of  mankind,  the  scope  of  judicial  notice  enlarges,  and  what,  yes- 
terday, would  have  required  proof,  to-day  is  assumed  as  a  mat- 
ter of  common  knowledge. 

The  common  knowledge  which  will  justify  a  court  in  taking 
judicial  notice  of  a  fact  must  be  common  throughout  the  juris- 
diction of  such  court,  and  cannot  be  local  to  a  single  com- 
munity."^ 

The  classes  of  facts  included  under  section  25  are  not  sepa- 
rated by  any  well-defined  line  from  many  facts  of  similar  na- 
ture concerning  which  the  rule  is  not  well  established  requiring 
judicial  notice  to  be  taken,  but  which  are  many  times,  in  the 
discretion  of  the  court,  so  noticed.  To  the  consideration  of 
this  latter  class  of  facts  we  shall  now  pass. 

The  realm  of  physical  laws  offers  many  illustrations  of  facts 
concerning  which  it  is  difficult  to  say  that  the  court  must  take 
judicial  notice,  and  yet  as  to  which  the  exercise  of  this  function 
seems  eminently  proper.  In  one  case  evidence  was  introduced 
showing  certain  services  which  a  child  of  two  years  was  ac- 
customed to  perform ;  but  the  court  disregarded  the  evidence, 
holding  that  judicial  notice  would  be  taken  that  a  child  of  such 

-5  Viemeister  v.  White,  179  N.  Y.  235,  72  N.  E.  97,  70  L.  R.  A.  796, 
103  Am.  St.  Rep.  8-59.  Here  the  court  noticed  that  it  was  the  common 
belief  of  the  people  of  the  state  that  vaccination  is  a  preventive  of 
smallpox,  and  upheld  the  constitutionality  of  the  law  requiring  vac- 
cination. Judge  Yann  says:  "While  the  power  to  take  judicial  no- 
tice is  to  be  exercised  with  caution,  and  due  care  taken  to  see  that 
the  subject  comes  within  the  limits  of  common  knowledge,  still  when, 
according  to  the  memory  and  conscience  of  the  judge,  instructed  by 
recourse  to  such  sources  of  information  as  he  deems  trustworthy,  the 
matter  is  clearly  within  those  limits,  the  power  may  be  exercised  by 
treating  the  fact  as  proved  without  allegation  or  proof.  *  *  *  Com- 
mon belief,  in  order  to  become  such  common  knowledge  as  to  be  ju- 
dicially noticed  by  us,  must  be  common  in  this  state,  although  in  a 
matter  pertaining  to  science  it  may  be  strengthened  somewhat  by  the 
general  acceptance  of  mankind.  As  was  said  by  Mr.  Justice  Swayne, 
in  Brown  v.  Piper,  91  U.  S.  37,  42,  23  L.  Ed.  200 :  'Courts  will  take  no- 
tice of  whatever  is  generally  known  within  the  limits  of  their  juris- 
diction, and  if  the  judge's  memoi-y  is  at  fault  he  may  refresh  it  by  re- 
sorting to  any  means  for  that  purpose  which  he  deems  safe  and 
proper.'  *  *  *  While  we  do  not  decide  and  cannot  decide  that  vac- 
cination is  a  preventive  of  smallpox,  we  take  judicial  notice  of  the 
fact  that  this  is  the  common  belief  of  the  people  of  the  state." 


§  25i)  FACTS    REQUIRED   TO    BE    NOTICED.  47 

tender  years  was  incapable  of  rendering  such  services  as  would 
lay  a  basis  for  recovery  of  damages.'''^ 

The  following  is  a  good  example  of  the  notice  of  a  scientific 
principle:  A.  asks  an  injunction  against  X.,  restraining  him 
fromjnfringing  A.'s  patent,  which  relates  to  the  preserving  of 
fish  "in  a  close  chamber  by  means  of  a  freezing  mixture  having 
no  contact  with  the  atmosphere  of  the  preserving  chamber." 
Though  not  set  up  as  a  defense,  the  court  will  take  judicial 
notice  of  the  principle  of  the  ice-cream  freezer,  as  the  same  as 
claimed  by  A.'s  patent,  and  will  hold  the  patent  void,  upon  the 
ground  that  "it  is  a  thing  in  the  common  knowledge  and  use 
of  the  people  throughout  the  country."  '^'^ 

This  is  one  of  the  most  striking  illustrations  under  the  head 
of  judicial  notice.  Without  proof  or  allegation  in  the  plead- 
ing, the  court  practically  created  a  defense  which  defeated  the 
plaintiff's  claim,  simply  by  assuming  without  proof  certain 
facts.'^® 

Where  there  was  no  proof  in  the  record  as  to  the  character 
of  cigarettes,  and  the  question  was  whether  they  were  legiti- 
me Southern  Ry.  Co.  v.  Covenia,  100  Ga.  46,  29  S.  E.  219,  40  L.  R.  A. 
253,  62  Am.  St.  Rep.  312. 

7  7  Brown  v.  Piper  (1875)  91  J.  S.  37,  23  L.  Ed.  200.  For  other  ex- 
amples of  the  notice  of  scientific  facts,  see  Carmen  v.  State,  18  Ind. 
450;  Eagan  v.  State,  53  Ind.  162;  Com.  y.  Pecham,  2  Gray  (Mass.)  514; 
Bryan  v.  Beckley,  Litt.  Sel.  Cas.  (Ky.)  91,  12  Am.  Dec.  276;  Fenton  v. 
State,  100  Ind.  598 — where  the  intoxicating  character  of  spirituous  liq- 
uors was  noticed.  Character  of  lager  beer:  Watson  v.  State,  55  Ala. 
158;  State  v.  Goyette.  11  R.  I.  592 ;  Briffitt  v.  State,  58  Wis.  39,  16  N. 
W.  39,  46  Am.  Rep.  621;  Inflammability  of  kerosene:  Wood  v.  North- 
western Ins.  Co.,  46  N.  Y.  421 ;  State  v.  Hayes,  78  Mo.  307.  Compare 
Mears  v.  Humboldt  Ins.  Co.,  92  Pa.  St.  15,  37  Am.  Rep.  647;  Photo- 
graphic process :     Luke  v.  Calhoun  Co.,  52  Ala.  115. 

It  is  doubtful,  however,  if  the  dictum  contained  in  a  recent  New 
York  case  represents  a  correct  view  as  to  the  application  of  the  doc- 
trine to  scientific  facts.  In  the  case  referred  to  the  judge,  though 
there  was  uncontradicted  evidence  to  establish  the  fact,  expresses 
the  view  that  "a  court  may  take  judicial  notice  of  the  scientific  fact 
that  one-tenth  of  a  grain  of  morphine  could  not  have  poisoned  the 
plaintiff."  This  seems  an  extreme  view.  Laturen  v.  Bolton  Drug  Co. 
(Sup.)  93  N.  Y.  Supp.  1035. 

7  8  See,  also,  Roberts  v.  Bennett,  136  Fed.  193,  69  C.  C.  A.  5''33, 
where  the  court  reversed  a  judgment  given  below  in  favor  of  the 
plaintiff,  holding  that  judicial  notice  of  the  ordinary  appearance  ol 


48  JUDICIAL   NOTICE.  (Ch,  2 

mate  articles  of  commerce,  the  court  held  judicial  notice  would 
be  taken  that  "their  use  is  always  harmful,  never  beneficial. 
They  possess  no  virtues,  but  are  inherently  bad.  and  bad  only. 
*  *  *  Their  every  tendency  is  toward  the  impairment  of 
physical  health  and  mental  vigor."  ''^ 

Facts  in  mechanical  construction,  such  as  the  fact  that  "no 
engine  can  be  so  constructed  that  some  sparks  will  not  es- 
cape," ^^  come  under  this  head ;  also  facts  with  relation  to  the 
different  seasons,  and  their  relation  to  agriculture.  For  exam- 
ple, the  court  has  taken  notice  of  the  fact  that  grass  cannot  be 
cut  and  made  into  hay  after  the  month  of  September;  ^^  that 
corn  is  mature  in  the  month  of  December ;  ^^  and  that  cotton  is 
not  planted  until  after  January ;  *^  various  business  customs ;  ®* 

the  conventional  bushel  basket  was  suflBcient  to  justify  the  disregard 
of  the  presumption  of  novelty  arising  from  the  grant  of  the  patent ; 
another  case  of  the  recognition  of  a  defense  not  set  up  by  the  defend- 
ant. 

7  9  Austin  V.  State,  101  Tenn.  563,  48  S.  W.  305,  50  L.  R.  A.  478,  70 
Am.  St.  Rep.  703.  Other  striking  cases  where  facts  of  nature  or  the 
physical  sciences  have  been  noticed  are:  Moore  v.  Saginaw,  T.  &  H. 
R.  Co.,  115  Mich.  103,  72  N.  W.  1112,  in  which  the  effect  of  the  jolting 
occasioned  by  shifting  of  cars  at  stations  upon  the  equilibrium  of  a 
passenger  was  noticed ;  Ex  parte  Kair,  28  Nev.  127,  80  Pac.  463,  where 
the  court  took  notice  that  prolonged  labor  in  underground  mines  was 
injurious  to  health;  Lidwinopsky's  Petition,  7  Pa.  Dec.  188,  where 
certain  facts  in  human  anatomy  were  the  subject  of  notice. 

For  a  very  excellent  discussion  of  the  principles  underlying  the  ap- 
plication of  the  doctrine  to  this  class  of  cases,  see  Hunter  v.  New 
York,  O.  &  W.  R.  Ck).,  116  N.  Y.  621,  23  N.  E.  9,  6  L.  R.  A.  246.  See, 
also,  Leovy  v.  U.  S.,  177  U.  S.  621,  20  Sup.  Ct.  797,  44  L.  Ed.  914. 

8  0  White  V.  New  York  Cent.  &  N.  H.  R.  R.  Co.,  00  App.  Div.  356,  85 
N.  Y.  Supp.  497;  Kleffmann  v.  Dry  Dock,  E.  B,  &  B.  R.  Co.,  104  App. 
Div.  416,  93  N.  Y.  Supp.  741,  where  the  court  noticed  judicially  the 
construction  of  an  ordinaiy  street  car. 

81  Raridan  v.  Central  Iowa  R.  Co.,  69  Iowa,  527,  29  N.  W.  599. 

82  Garth  v.  Caldwell,  72  Mo.  622. 

8  3  Wetzler  v.  Kelly,  83  Ala.  440,  3  South.  747.  See,  also,  Floyd  v. 
Ricks,  14  Ark.  286,  58  Am.  Dec.  374;  Dixon  v.  Niccolls,  39  III.  373,  89 
Am.  Dec.  312;  Patterson  v.  McCausland,  3  Bland  (Md.)  69;  Tomlinson 
V.  Greenfield,  31  Ark.  557;  Ross  v.  Boswell,  60  Ind.  235;  Loeb  v.  Rich- 
ardson, 74  Ala.  311;  Mahoney  v.  Aurrecochea,  51  Cal.  429;  State  v. 
Morris,  47  Conn.  180;  Person  v.  Wright,  35  Ark.  169;  Piano  Mfg.  Co. 
v.  Cunningham,  73  Mo.  App.  376. 

84  As  to  the  charging  of  interest:    Watt  v.  Hoch,  25  Pa.  411.    As  to 


§  25i)  FACTS    REQUIRED   TO    BE    NOTICED. 


49 


the  established  weights  and  measures  ;  *^  the  meaning  of  words 
and  abbreviations.®® 

The  things  of  which  the  court  may,  in  its  discretion,  take  ju- 
dicial notice,  can  scarcely  be  classified,  so  diverse  are  they  in 
character  and  in  effect.  It  has  already  been  said  that  the  prin- 
ciple which  governs  the  action  of  the  court  in  respect  to  these 
facts  is  notoriety,  as  distinguished  from  universal  recognition. 
The  question  of  whether  sufficient  notoriety  attaches  to  any 
particular  fact  to  make  it  safe  and  proper  to  assume  it  without 
proof  is  always  the  vital  question.  The  authorities  show  lit- 
tle tendency  on  the  part  of  the  courts  to  overstep  the  limits 
of  prudence  in  the  exercise  of  that  discretion,  and  a  broader 
application  of  the  principle  of  judicial  notice  in  many  cases 
would  have  furthered  the  cause  of  justice.®'  In  every  case  the 
particular  circumstances  must  govern,  and  no  general  rule  can 

the  passing  of  carriages  when  they  meet  on  the  road:  Turley  v. 
Thomas,  8  Car.  &  P.  104.  As  to  marine  customs:  The  Scotia,  14  Wall. 
(U.  S.)  170,  20  L.  Ed.  822.  As  to  mutual  credits  between  merchants: 
Cameron  v.  Blackman,  39  Mich.  108.  As  to  collection  of  bills  and 
notes:  Lee  v.  Chillicothe  Bank,  1  Biss.  (U.  S.)  325,  Fed.  Cas.  No.  8,187. 
Usage  of  banks:  British  &  American  Mortg.  Co.  v.  Tibballs,  63  Iowa, 
468,  19  N.  W.  319.  As  to  custom  of  undervaluation  of  real  estate, 
when  assessed  for  tax  purposes:  Railroad  &  Telephone  Cos.  v.  Board 
of  Equalizers  (C.  C.)  85  Fed.  .302.  As  to  methods  of  selling  crushed 
stone:  Duby  v.  Jackson,  69  Minn.  342,  72  N.  W.  568.  As  to  differ- 
ence between  a  wholesaler  and  manufacturer  as  understood  in  trade: 
Kansas  City  v.  Butt,  88  Mo.  App.  237.  As  to  reading  of  Bible  in  pub- 
lic schools:  PfeifCer  v.  Board  of  Education,  118  Mich.  5G0,  77  N.  W. 
250,  42  L.  R.  A.  536. 

8  5  Mays  V.  Jennings,  4  Humph.  (Tenn.)  102. 

86  Abbreviation  "C.  O.  D.":  State  v.  Intoxicating  Liquors,  73  Me. 
278 ;  United  States  Express  Co.  v.  Keefer,  59  Ind.  203 ;  Paris  v.  Lewis, 
85  111.  597.  "P.  M."  and  "A.  M.":  Hedderich  v.  State,  101  Ind.  564,  1 
N.  E.  47,  51  Am.  Rep.  768.  Meaning  of  words :  Smith  v.  Clayton,  29 
N.  J.  Law,  357;  Watson  v.  State,  55  Ala.  158.  "F.  O.  B.":  Yogt  v. 
Shienebeck,  122  Wis.  491,.  100  N.  W^  820,  67  L.  R.  A.  756.  306  Am.  St. 
Rep.  989;  "Sees.  23,  38,  14":  "McChesney  v.  City  of  Chicago,  173  111. 
75,  50  N.  E.  191. 

8  7  In  Ellis  V.  Park,  8  Tex.  205,  the  court  refused  to  take  judicial 
notice  that  "St.  Louis,  Mo.,"  meant  "St.  Louis,  Missouri,"  and  in  Ac- 
cola  V.  Chicago,  B.  &  Q.  Ry.  Co.,  70  Iowa,  185,  30  N.  W.  503,  refused 
to  notice  that  "C,  B.  &  Q.  R.  R.  Co."  meant  "Chicago,  Burlington  and 
Quincy  Railroad  Company."  In  both  of  these  cases,  it  seems,  the 
court  stopped  short  of  a  reasonable  exercise  of  its  discretion. 

m'kelv.ev.(2d  ED.) — 4 


50  JUDICIAL   NOTICE.  (Ch.  2 

be  laid  down.  The  decisions  in  particular  cases  are  only  use- 
ful as  they  serve  to  furnish  illustrations  from  which  we  can  ar- 
gue by  analogy.  They  are  not  useful  as  precedents,  inasmuch 
as  the  same  facts  may  at  a  different  time,  and  under  different 
circumstances,  be  entitled  to  different  treatment. 

As  an  interesting  illustration  of  one  of  this  class  of  cases, 
where  the  court  did  not  deem  it  proper  to  exercise  its  right  to 
notice  without  proof,  the  following  will  serve:  A.  sues  X.  as 
acceptor  of  a  bill  of  exchange,  and  alleges  in  his  declaration 
that  he  drew  a  bill  at  Dublin,  directed  to  X.,  for  the  sum  of 
£54:2.  10s.  8d.,  which  X.,  at  Dublin,  accepted.  At  the  trial  the 
proof  showed  that  the  bill  was  drawn  and  accepted  in  Dublin, 
Ireland.  X.  claimed  a  variance,  in  that  the  proof  did  not  con- 
form to  the  pleading,  as  £542.  IDs.  8d.  in  Irish  money  amounted 
to  only  £500.  7s.  9d.  in  English,  and  the  declaration  did  not 
show  that  the  bill  referred  to  the  former.  The  question  was 
whether  or  not  the  court  Avould  take  judicial  notice  of  the  fact 
that  DubHn,  as  mentioned  in  the  description  of  the  bill  of  ex- 
change contained  in  the  declaration,  was  in  Ireland.  Held,  "it 
is  not  possible  for  the  court  to  take  judicial  notice  that  there  is 
only  one  Dublin  in  the  world."  ®® 

In  Michigan  the  court  has  taken  judicial  notice  of  a  street- 
car strike  in  Detroit  within  a  year  or  two  previous  to  the 
trial;  ®^  in  Maine  the  difference  between  the  three  customary 
surveys  of  logs  on  the  waters  of  the  Penobscot  river  has  been 
noticed.®*' 

In  Peters  v.  Fleming  ^^  the  court  took  judicial  notice  that  it 
was  prima  facie  not  unreasonable  that  an  undergraduate  at 
college  should  have  a  watch,  and  consequently  a  watch  chain, 
and  that,  therefore,  it  was  a  question  for  a  jury  whether  the 
watch  chain  supplied  on  credit  in  that  particular  case  was 
such  a  vv-atch  chain  as  was  necessary  to  support  himself  prop- 

8  8  Kearney  v.  Rex  (1819)  2  Barn.  &  Aid.  301. 

89  Geist  V.  Railroad,  91  Mich.  446,  51  N,  W.  1112. 

90  Putnam  v.  Wbite,  76  Me.  .5.51.  Certain  new  methods  of  doing 
business  have  been  held  a  proper,  though  not  necessary,  subject  of  ju- 
dicial notice.  Gregory  v.  Wendell.  39  Mich.  337,  33  Am.  Rep.  390? 
Adams  Mining  Co.  v.  Senter,  26  Mich.  73;  Davis  v.  Kobe,  36  Minn. 
214,  30  N.  W.  662.  1  Am.  St.  Rep.  663. 

91  6  Mees.  &  W.  42. 


§  25i)  FACTS   REQUIRED  TO  BE   NOTICED.  51 

erly  in  his  degree.  Upon  the  trial  of  X.  for  murder,  it  became 
material  for  the  state  to  prove  at  what  hour  the  moon  rose  on 
the  night  of  Saturday,  the  9th  of  August,  1879.  Gruber's  Al- 
manac for  the  year  1879  was  offered  in  evidence.  Although  the 
statement  by  some  one  of  a  mere  calculation  that  the  moon 
would  rise  at  a  certain  hour  and  minute,  it  is  admissible,  not 
as  furnishing  logical  proof  of  the  time  at  which  it  did  in  fact 
rise,  but  upon  the  theory  that  the  court  will  take  judicial  notice 
of  the  fact  that  almanacs  are  sources  upon  which  the  world  re- 
lies for  its  information  as  to  such  facts,  and  will  therefore 
adopt  the  same  source  for  its  information. ^^ 

The  custom  of  banks  closing  at  3  o'clock  has  been  held  a 
proper  subject  of  judicial  notice ;  ^^  so,  also,  the  management 
of  railroads.^'* 

Many  historical  facts  of  general,  and  even  sometimes  of  lo- 
cal, character,  are  judicially  noticed.^ ^  It  is  a  matter  of  sound 
discretion  with  the  court  to  decide  when  a  fact  is  of  sufficient 
notoriety  to  be  assumed  without  proof.  It  may  be  said  that 
in  respect  to  certain  salient  facts  in  the  history  of  an  entire 
country,  facts  which  have  affected  the  progress  ®®  and  wel- 

92  Munsbower  v.  State  (1830)  55  Md.  11,  39  Am.  Rep.  414.  It  may 
be  more  correct  to  say  that  the  primary  fact  of  which  the  court 
takes  judicial  notice  is  the  time  when  the  moon  arose,  and  that  it 
permits  the  use  of  the  almanac  for  its  information  upon  the  further 
application  of  the  principle  of  judicial  notice  above  stated.  Ante, 
p.  22. 

93  Merchants'  Nat.  Bank  of  Whitehall  v.  Hall,  83  N.  Y.  338,  38 
Am.  Rep.  434. 

94  Evansville  &  C.  R.  Co,  v.  Smith,  65  Ind.  92;  South  &  N.  Ala.  R. 
Co.  V.  Pilgreen,  62  Ala.  305. 

95  In  State  v.  Atlantic  Coast  Line  R.  R.  Co.  the  court  noticed 
that  phosphate  is  produced  in  some  portions  of  Florida  and  is  an 
article  of  transportation.  Conde  v.  City  of  Schenectady,  29  App.  Div. 
604,  51  N.  Y.  Supp.  8.54. 

9  6  As  to  what  states  seceded,  and  what  remained  loyal:  Perkins 
V.  Rogers,  35  Ind.  124,  9  Am.  Rep.  639.  Ceding  of  land  by  one  state 
to  another:  People  v.  Snyder,  41  N.  Y.  397.  Existence  of  civil  war: 
Swinnerton  v.  Columbian  Ins.  Co.,  37  N.  Y.  174,  93  Am.  Dec.  560. 
The  Prize  Cases,  2  Black  (U.  S.)  635,  17  L.  Ed.  459.  That  the  state  of 
Maryland  embraces  part  of  the  original  English  colonies  of  America  : 
Frank  v.  Gump,  104  Va.  306,  51  S.  E.  358.  That  the  great  grain  fields 
of  the  country  lie  west  of  the  Hudson  river:    Bradley  v.  Gorham,  77 


52  JUDICIAL   NOTICE.  (Oh.  2 

fare  of  the  entire  people,  judicial  notice  is  proper;  but,  in  the 
main,  how  far  the  courts  will  exercise  this  power  is  a  matter 
of  discretion.*'' 

An  interesting  example  of  the  exercise  by  the  court  of  its 
discretionary  power  is  found  in  a  recent  Western  case,  where 
the  facts  of  existence  of  an  insurrection  in  the  Philippines  in 
1898,  and  that  at  a  certain  date  later  the  insurrection  in  the  Is- 
land of  Mindanao  had  ceased,  were  judicially  noticed.®* 

The  limits  which  the  courts  have  laid  down  to  the  application 
of  this  principle  are  not  always  consistent,  and  an  attempt  to 
reconcile  the  many  decisions  would  prove  as  impracticable  as 
useless.  Judicial  notice  is  not  a  substitute  for  proof,  nor  a 
means  to  strengthen  a  weak  case.  There  are  doubtless  in- 
stances of  its  too  extensive  as  well  as  too  narrow  application, 
but  in  the  main  the  decisions  may  be  said  to  follow  the  lines 
above  laid  down.®* 

Conn.  211,  58  A.  698,  66  L.  R.  A.  934.  As  to  the  date  of  opening  of  a 
trunk  line  railway:  Knowlton  v.  Railroad  Co.,  72  Conn.  188,  44  Atl. 
8.  As  to  early  colonial  history  of  Massachusetts:  Blethan  v.  Bonner 
(Tex.  Civ.  App.)  52  S.  W.  571. 

97  Separation  of  Methodist  Episcopal  Church  into  two  branches 
m  1844:  Humphrey  v.  Burnside,  4  Bush.  (Ky.)  215.  Existence  of  a 
certain  public  sentiment  at  a  particular  time:  Stout  v.  Board  Com'rs, 
107  Ind.  343,  8  N.  E.  222 ;  Hanes  v.  Herman,  78  Mo.  623.  Existence 
of  "hard  times" :  Ashley  v.  Martin,  50  Ala.  537.  Career  of  Fremont 
in  California :  De  Cells'  Adm'r  v.  U.  S.,  13  Ct.  CI.  117.  Sherman's 
march  to  the  sea:  Williams  v.  State,  67  Ga.  260.  That  the  Columbian 
Exposition  was  held  iu  Chicago  is  a  historical  fact:  Osgood  v.  Skin- 
ner, 186  111.  491,  57  N.  E.  1043. 

8  8  La  Rue  v.  Kans.  Mut.  Life  Ins,  Co.,  68  Kan.  539,  75  Pac.  494. 

99  The  following  are  a  few  of  the  more  striking  cases  where  the 
courts  have  refused  to  apply  the  principle:  As  to  the  merits  or  de- 
fects of  oleomargarine:  Northwestern  Manuf'g  Co.  v.  Wayne  Circuit 
Judge,  58  Mich.  381,  25  N.  W.  372,  55  Am.  Rep.  693.  As  to  the  effect 
of  the  habit  of  smoking  cigars:  Mueller  v.  State,  76  Ind.  310,  40  Am. 
Rep.  245.  But  see  Austin  v.  State,  101  Teun.  563,  48  S.  W.  305, 
50  L.  R.  A.  478,  70  Am.  St.  Rep.  703.  As  to  an  individual  inhabitant 
of  a  seceding  state  remaining  loyal  to  the  United  States:  Perkins  v. 
Rogers,  35  Ind.  124,  9  Am.  Rep.  639.  As  to  whether  concentric  circles 
in  the  trunk  of  a  tree  mark  each  year's  growth:  Patterson  v.  Mc- 
Causland.  3  Bland  (.Md.)  69.  As  to  meaning  of  "St.  Louis.  Mo.." 
Ellis  V.  Park.  8  Tex.  205;  "New  Orleans,  La.,"  Russell  v.  Martin,  15 
Tex.  238.     These  two  cases  seem  to  be  clearly  within  the  principle 


§  25i)  FACTS    REQUIRED   TO    BE    NOTICED.  53 

that  the  court  should  notice  ordinary  abbreviations,  and,  it  is  be- 
lieved, would  not  be  followed,  except  in  the  jurisdiction  where  they 
have  made  the  law.  The  court  refused  to  take  notice,  as  being  a 
matter  of  conmion  knowledge,  that  the  rights  of  way  of  railroad  com- 
panies are  fenced  as  the  track  is  constructed.  C.  &  M.  Elec.  R.  Co. 
V.  Diver,  213  111.  2G,  72  N.  E.  758.  In  a  recent  case,  where  the  ques- 
tion of  the  civil  rights  of  the  Roman  Catholic  Church  arose,  the  court 
say:  "Judicial  notice  is  to  be  taken  with  caution,  and  every  reason- 
able doubt  as  to  the  propriety  of  its  exercise  in  a  given  case  should 
be  resolved  against  it.  The  general  practice  is  to  I'equire  proof  re- 
garding church  rights  and  powers."  Baxter  v.  McDonnell,  155  N.  T. 
83.  49  N.  E.  667,  40  L.  R.  A.  670.  To  same  effect.  Hill  Estate  Co. 
v.  Whittlesey,  21  Wash.  142,  57  Pac.  345.  But  see  Potter  v.  New 
York  Evening  Journal  Publishing  Co.,  68  App.  Div.  95,  74  N.  Y.  Supp. 
317. 


54  QUESTIONS   OF   LAW   AND    QUESTIONS   OF    FACT.       (Ch.  3 

CHAPTER  III. 
QUESTIONS  OF  LAW  AND  QUESTIONS  OF  FACT. 

26.  In  General. 

27.  Questions  of  Law  Defined. 

28.  Questions  of  Fact  Defined. 

29.  Province  of  Court  and  Jury. 

IX  GEXERAIi. 

26.    The  questions  Tpliicli  arise  for  determination  in  tlie  trial 
of  a  case  have  been  divided  into  two  classes: 
(a)    Questions  of  laiv,  and 
Cb)    Questions  of  fact. 

The  distinction  is  one  which  has  been  universally  made,  but 
not  always  with  a  uniform  meaning.  It  is  well  to  understand 
at  the  start  in  just  what  sense  these  terms  "questions  of  law" 
and  "questions  of  fact"  will  be  used.  Under  the  common-law 
system,  the  trial  of  a  case  involved  its  submission  to  a  double- 
headed  tribunal, — a  tribunal  composed  of  the  judge  and  the 
jury.  The  result  of  this  method  of  procedure  was  a  separation 
of  the  work  of  the  judge  from  that  of  the  jury,  and  a  constant 
struggle  by  the  courts  to  define  accurately  the  peculiar  province 
of  each.  The  idea  was  early  developed  that  the  court  was  con- 
cerned with  the  law,  and  the  jury  with  the  facts,  of  the  case ; 
and  that  general  rule,  so  often  quoted,  came  about,  that  ques- 
tions of  law  are  for  the  judge  and  questions  of  fact  for  the 
jury.  This  implied  a  fundamental  distinction  between  ques- 
tions of  law  and  questions  of  fact.  Such  a  distinction  ex- 
ists, and,  as  long  as  the  inherent  quality  of  a  question  is 
made  the  test  of  its  character  as  a  question  of  law  or  a  ques- 
tion of  fact,  the  distinction  is  a  sensible  one.  But  the  gen- 
eral rule  quoted  above  was  never  strictly  true;  for,  while, 
in  the  main,  questions  of  law  were  for  the  judge,  and  questions 
of  fact  for  the  jury,  it  was  not  true  that  all  questions  of  law 
were  for  the  judge,  nor  all  questions  of  fact  for  the  jury.^    Yet 

1  Kartlett  v.  Smith,  11  Mees.  &  W.  483;  Bennison  v.  Jewison,  12 
Jur.  485. 


§  27)  QUESTIONS   OF   LAW    DEFINED.  55 

it  was  so  understood,  and  from  this  understanding  arose  the 
conception  that  the  converse  of  the  rule  was  true, — that  any 
question  which  was  for  the  judge  must  necessarily  be  a  question 
of  law,  and  any  question  which  was  for  the  jury  must  of  ne- 
cessity be  a  question  of  fact ;  hence  the  conception  that  ques- 
tions of  law  meant  any  questions  decided  by  the  judge,  and 
questions  of  fact  any  questions  decided  by  the  jury.^  It  is 
just  this  idea  which  the  mind  should  be  free  from  in  consider- 
ing the  respective  provinces  of  court  and  jury.  What  is  meant 
by  a  question  of  law  is  that  which  by  itself,  without  reference 
to  whether  it  is  determined  by  judge  or  jury,  has  a  distinctive 
character  which  makes  it  such.  The  same  is  true  of  the  mean- 
ing of  questions  of  fact. 


QUESTIONS  OF  IiA"W  DEFIXED. 

27.  Wherever  the  thing  to  be  determined  involves  the  applica- 
tion of  some  principle  of  the  statute  or  common  law, 
■we  have  a  question  of  la^v. 

Questions  of  law  do  not  arise  except  upon  and  after  the  de- 
termination of  questions  of  fact.  They  are  predicated  upon 
the  existence  of  facts,  and  deal  with  their  effect.  Given  cer- 
tain facts,  and  the  question  whether  they  constitute  a  contract 
is  a  question  of  law.  In  the  case  of  a  suit  for  malicious  prosecu- 
tion, the  questions  as  to  what  the  circumstances  were  which  at- 
tended the  prosecution  are  questions  of  fact,  and  are  determined 

2  Hamilton  v.  Insurance  Co.,  136  U.  S.  255,  10  Sup.  Ct.  945,  34  L. 
Ed.  419.  Report  of  Criminal  Code  Bill  Commission,  Draft  Code,  § 
74,  where  it  is  said:  "The  question  whether  an  act  done  or  omitted 
with  intent  to  commit  an  offense  is  or  is  not  only  preparation,  and 
too  remote  to  constitute  an  attempt,  is  a  question  of  law." 

In  an  analysis  of  the  distinction  between  law  and  fact,  a  writer  in 
12  Harvard  Law  Review,  545,  comes  to  precisely  this  conclusion,  and 
expressly  dissents  from  the  theory  laid  down  by  Prof.  James  B. 
Thayer  in  his  "Preliminary  Treatise  on  Evidence  at  the  Common 
Law."  The  distinction  which  Prof.  Thayer  finds  seems  founded  upon 
a  scientific  treatment  of  the  subject,  while  the  theory  put  forth  by 
the  writer  referred  to  makes  a  pm-ely  arbitrary  division,  which  lends 
itself  to  no  useful  purpose  in  its  application  to  the  many  cases  which 
involve  the  determination  of  the  question. 


56  QUESTIONS   OF   LAW   AND   QUESTIONS   OF    FACT.       (Cb.  3 

by  the  jury.  The  law  as  to  what  constitutes  reasonable  and 
probable  cause,  as  laid  down  in  the  decisions,  is  explained  to 
the  jury  by  the  judge.  The  jury  then  determines  whether, 
in  the  particular  case  under  consideration,  the  facts  as  it  finds 
them  to  exist  constitute  reasonable  and  probable  cause,  as  de- 
fined by  the  judge.  We  thus  have  the  jury  determining  two 
questions :  First,  what  the  facts  are ;  second,  whether  the 
facts  bring  the  case  within  a  certain  rule  laid  down  by  the  judge 
as  to  their  efifect.  In  determining  the  first  question,  the  jury  is 
free  to  act  as  it  pleases.  In  determining  the  second,  it  is  bound 
to  follow  the  instruction  given  by  the  judge.  Assume,  for  ex- 
ample, that  the  jury  finds  that  the  defendant  caused  the  arrest 
of  the  plaintifif  in  good  faith,  honestly  supposing  that  the  plain- 
tiff had  stolen  his  property,  but  that  no  reasonable  man,  from 
the  circumstances  surrounding  the  transaction,  would  have 
been  justified  in  believing  that  the  plaintiff  was  the  criminal. 
The  judge  having  explained  to  the  jury  what  the  law  is,  that 
malice  means  simply  a  want  of  reasonable  and  probable  cause, 
and  that  reasonable  and  probable  cause  means  such  cause  as 
would  have  justified  a  reasonable  and  prudent  man  in  acting, 
the  jury  would  be  bound  to  conclude  that  the  facts  found  by 
it  were  not  sufficient  to  bring  the  case  within  the  rule  as  laid 
down  by  the  judge,  and  would  therefore  find  a  verdict  for  the 
plaintiff.  In  such  a  case,  the  jury  has,  by  virtue  of  its  own 
powers,  determined  the  facts,  and,  as  the  exponent  of  the  judge 
and  in  accordance  with  his  instructions,  formally  expressed  by 
its  verdict  the  determination  of  the  question  of  law.  Had  it 
found  a  special  verdict  reciting  the  facts,  and  the  judge  then 
directed  the  judgment  in  accordance  with  his  conclusions  as  to 
the  law  from  the  facts,  the  two  questions  would  have  been 
more  visibly,  though  not  more  completely,  separated.^ 

3  In  Com.  V.  Porter,  10  Mete.  (Mass.)  263  (1846),  Sliaw,  C.  J.,  dis- 
cusses fully  the  province  of  court  and  jury  in  criminal  trials,  the  ques- 
tion arising  upon  the  contention  that  counsel  for  defendant  had  no 
right  to  address  the  jury  on  a  question  of  law.  He  comes  to  the 
following  conclusions :  "The  question,  then,  recurs,  in  case  the  jury 
return  a  general  verdict,  how  is  the  law  to  be  decided  by  the  court 
when,  as  we  have  seen,  it  is  to  be  declared  by  the  jury,  as  involved 
in  the  general  verdict?  As  both  questions  are  involved  in  the  verdict, 
the  appearance  on  the  record  is  that  both  are  decided  by  the  juiy, 
because  both  are  declared  by  them.     But  this  is  in  api>earanee  only. 


§  27)  QUESTIONS   OF   LAW    DEFINED.  57 

It  is  to  be  observed  that  the  facts  found  by  the  jury  in  a 
case  of  this  sort,  and  indeed  in  almost  every  case,  are  of  two 
kinds :  (1)  Those  for  the  proof  of  which  evidence  is  adduced, 
upon  which  evidence  alone  the  jury  must  rely  in  its  conclu- 
sions ;  such  as,  what  the  plaintiff  said  and  did,  and  what  the  de- 

and  can  scarcely  mislead  those  who  are  acquainted  with  the  practice 
of  the  courts  of  justice  in  criminal  trials,  though  it  has  sometimes 
led  to  the  argument  that  because  they  must,  in  a  general  verdict,  de- 
clare the  rule  of  law  on  which  it  rests,  they  have  power  to  pass  upon 
it,  and  therefore  a  rightful  authority  to  decide  upon  it.    *    *    *    On  the 
whole  subject,  the  views  of  the  court  may  be  summarily  expressed  in 
the  following  propositions :     That  in  all  criminal  cases  it  is  competent 
for  the  jurj',  if  they  see  fit,  to  decide  upon  all  questions  of  fact  em- 
braced in  the  issue,  and  to  refer  the  law  arising  thereon  to  the  court, 
in  the  form  of  a  special  verdict.     But  it  is  optional  with  the  jury  thus 
to  return  a  special  verdict  or  not,  and  it  is  within  their  legitimate 
province  and  power  to  return  a  general  verdict,  if  they  see  fit.     In 
thus  rendering  a  general  verdict,  the  jury  must  necessarily  pass  upon 
the  whole  issue,  compounded  of  the  law  and  fact,  and  they  may  thus 
incidentally  pass  on  questions  of  law.     And  if,  in  the  progress  of  the 
trial,  or  the  summing  up  and  charge  to  the  jury,  the  court  should  ex- 
press or  intimate  any  opinion  upon  any  such  question  of  fact,  it  is 
within  the  legitimate  province  of  the  jury  to  revise,  reconsider,  and 
decide  contrary  to  such  opinion,  if.  in  their  judgment,  it  is  not  correct 
and  warranted  by  the  evidence.     But  it  is  the  duty  of  the  court  to  in- 
struct the  jury  on  all  questions  of  law  which  appear  to  arise  in  the 
cause,  and  also  upon  all  questions  pertinent  to  the  issue  upon  which 
either  party  may  request  the  direction  of  the  court  upon  matters  of 
law.     And  it  is  the  duty  of  the  jury  to  receive  the  law  from  the  court, 
and  to  conform  their  judgment  and  decision  to  such  instructions  as 
far  as  they  understand  them,  in  applying  the  law  to  the  facts  to  be 
found  by  them ;  and  it  is  not  within  the  legitimate  province  of  the 
jury  to  revise,  reconsider,  or  decide  contrary  to  such  opinion  or  di- 
rection of  the  court  in  matters  of  law.    *     *    *    It  is  within  the  legit- 
imate power,  and  is  the  dutj',  of  the  court,  to  superintend  the  course 
of  the  trial ;  to  decide  upon  the  admission  and  rejection  of  evidence ; 
to  decide  upon  the  use  of  any  books,   papers,   documents,  cases,  or 
worlds  of  supposed  authoritj'  which  may  be  offered  upon  either  side;  to 
decide  upon  all  collateral  and  incidental  proceedings ;  and  to  confine 
parties  and  counsel  to  the  matters  within  the  issue.     As  the  jury 
have  a  legitimate  power  to  return  a  general  verdict,  and  in  that  case 
must  pass  upon  the  whole  issue,  this  court  are  of  the  opinion  that 
the  defendant  has  a  right  by  himself  or  his  counsel  to  address  the 
jury,  under  the  general  superintendence  of  the  court,  upon  all  the  ma- 
terial questions  involved  in  the  issue,  and,  to  this  extent  and  in  this 
connection,  to  address  the  jury  upon  such  questions  of  law  as  come 
within  the  issue  to  be  tried." 


58  QUESTIONS   OF   LAW   AND   QUESTIONS   OF    FACT.       (Cb.  3 

fendant  did,  in  respect  to  the  transaction  in  question.  (2) 
Those  for  the  determination  of  which  the  jury  must  rely  upon 
its  own  knowledge  and  experience ;  for  example,  what  a  rea- 
sonable man  would  have  done  under  the  same  circumstances 
as  have  been  found  to  exist.  Both  classes  of  facts  are  plainly 
for  the  jury.*  There  is,  however,  a  clear  distinction  between 
them.  Referring  again  to  the  example  given,  what  is  reason- 
able and  probable  cause  is  a  question  of  law.  and  the  judge  ex- 
plains it  to  the  jury,  using  such  general  language  or  such  spe- 
cific examples  as  may  serve  the  purpose  best,  and  make  it  clear. 
Whether  or  not,  under  the  particular  circumstances  found  to 
exist,  a  reasonably  prudent  man  would  have  acted  as  the  de- 
fendant did,  is  a  question  of  fact.  A  failure  to  make  this  dis- 
tinction has  sometimes  caused  confusion,  and  given  rise  to  an 
erroneous  idea  that  in  a  case  of  this  sort  a  jury  determines  the 
question  of  law  as  well  as  the  question  of  fact.  It  has  also  re- 
sulted in  the  mistake  of  regarding  the  facts  for  the  considera- 
tion of  the  jury  as  confined  to  the  physical  facts  of  time,  place, 
and  circumstances,  and  regarding  everything  else  as  a  question 
of  law  for  the  court. 


QUESTIONS  OF  FACT  DEFINED. 

28.    The  question  of  tlie  existence  or  nonexistence  of  a  certain 
state  of  tilings  or  condition  is  a  question  of  fact. 

Questions  of  fact  are  more  easily  recognized  than  questions 
of  law.  In  every  case  the  existence  of  certain  things  is  af- 
firmed by  one  side,  and  denied  by  the  other.  Evidence  is  of- 
fered by  each  side,  and  the  jury,  or  court,  where  the  question 
of  fact  is  one  to  be  decided  by  the  court,  upon  the  evidence, 
determines  what  the  facts  are.  If  the  jury  in  questions  sub- 
mitted to  it,  sometimes  seems  to  go  further  than  this,  as  is  the 
case  whenever  a  general  verdict  is  given,  as  distinguished  from 
a  special  verdict,  it  is  only  because  of  the  form  of  the  proce- 
dure. In  theory,  what  the  jury  does  is  to  find  the  facts,  and 
then  to  give  their  verdict  in  accordance  with  the  law  as  the 
judge  has  explained  it  to  them  to  be  applicable  in  case  the 
facts  are  as  found. 

4  Thayer.  Cas.  Ev.  (2d  Ed.)  p.  142. 


29)  PROVINCE   OF   COURT   AND  JURY.  59 


PROVINCE  OF  COURT  AND  JURY. 

29.    In  no  case  can  it  properly  be  said  that  the  jury  determines 
a  question  of  law.     The  judge,   however,  does,  in  cer- 
-  tain  cases,  determine  questions  of  fact. 

With  respect  to  the  main  facts  in  issue  the  judge  has  nothing 
to  do,  in  the  sense  of  determining  their  existence,  but  there 
are  certain  preliminary  and  collateral  questions  of  fact  which 
are  exclusively  within  the  province  of  the  judge,  and  with 
which  the  jury  has  nothing  to  do.  Many  of  these  questions  re- 
late to  the  admission  of  evidence,  to  the  competency  of  wit- 
nesses, and  to  the  conduct  of  the  trial  in  other  respects.^  In 
the  determination  of  questions  of  this  sort  the  court  cannot 
seek  the  aid  of  a  referee,  any  more  than  he  can  that  of  the 
jury.  He  alone  must  pass  upon  the  question,  from  evidence 
submitted  to  him  in  open  court.^ 

It  may  be  thought  that  the  power  which  the  judge  exer- 
cises in  determining  whether  enough  evidence  has  been  intro- 
duced upon  any  fact  in  issue  to  justify  submitting  the  ques- 

5  Facts  preliminary  to  the  admissibility  of  evidence.  Com.  v.  Coe, 
115  Mass.  4S1,  504,  505 ;  Com.  v.  Robinson,  146  Mass.  571,  581,  16  N. 
E.  452;  Dole  v.  Johnson,  50  N.  H.  452.  4-59.  Whether  a  person  is 
qualified  to  testify  as  an  expert  is  a  preliminary  question  of  fact  for 
the  court.  Nelson  v.  Sun  Mut  Ins.  Co.,  71  N.  Y.  4.53 ;  State  v.  Cole, 
94  N.  C.  958,  964.  Whether  a  confession  is  voluntary,  and  therefore 
admissible.  ^^lui-phy  v.  People,  63  N.  Y.  590,  597;  Ellis  v.  State,  65 
Miss.  44,  3  South.  188,  7  Am.  St.  Rep.  634.  Whether  a  witness  pos- 
sesses sufficient  intelligence  to  testify — Com.  v.  Mullins,  2  Allen  (Mass.) 
295 ;  Peterson  v.  State,  47  Ga.  524 — or  understands  the  nature  of  the 
oath— Com.  v.  Lynes,  142  Mass.  577,  .580,  8  N.  E.  408,  56  Am.  Rep.  709. 

6  Simpson  v.  State,  31  Ind.  90.  Here  the  judge,  not  being  satisfied 
as  to  the  competency  of  a  child  six  years  old,  "appointed  two  gentle- 
men, who  retired  with  the  child  to  a  private  room,  and  after  some 
time  returned,  and  reported  to  the  court  that  'in  their  opinion  her 
testimony  ought  to  be  heard,  but  received  with  great  allowance.'  " 
She  was  allowed  to  testify.  The  appellate  court  reversed  the  judg- 
ment, saying:  "This  determination  is  judicial.  The  examination 
is  part  of  the  trial,  must  be  public,  and  must  be  made  by  the  court. 
The  decision  must  be  founded  upon  the  opinion  of  the  judge  from 
the  examination  which  he  makes.  It  cannot  be  referred  to  some  one 
else  to  do  this,  nor  can  the  judge  be  guided  by  the  opinion  of  such 
referee." 


60  QUESTIONS   OF   LAW   AND   QUESTIONS   OF   FACT.       (Ch.  3 

tion  to  the  jury  is  the  determination  of  a  question  of  fact.  For 
example,  when  a  judge  decides  that  there  is  not  sufficient  evi- 
dence to  go  to  the  jury,  he  apparently  determines  that  the  fact 
sought  to  be  proved  does  not  exist.  The  question,  however,  is 
one  of  law,  and  not  of  fact.'^  This  may  be  easily  seen  by  con- 
sidering the  situation  in  case  the  judge  determines  that  there 
is  sufficient  evidence  to  go  to  the  jury.  This  is  not  finding  that 
the  fact  is  proved,  for  the  jury  is  free  to  find,  upon  the  evidence 
submitted,  either  way.  As  a  matter  of  law,  it  is  established  that 
sufficient  evidence  must  be  introduced  to  justify  a  jury  in  find- 
ing the  existence  of  the  thing  sought  to  be  proved  before  it  can 
be  submitted  to  the  jury.  In  any  particular  case,  what  is  suffi- 
cient evidence  to  bring  the  case  within  the  rule  is  clearly  a 
question  of  law. 

The  following  example  is  an  illustration  of  the  court  being 
misled  into  improperly  leaving  a  question  to  the  jury  merely 
because  it  was  a  question  of  fact:  A.  against  X.  Assumpsit 
on  a  bill  of  exchange.  A.  offers  the  bill  in  evidence.  X.  ob- 
jects, on  the  ground  that  it  is  not  properly  stamped.  On  its 
face,  the  bill  was  a  foreign  bill,  and  properly  stamped.  X. 
claims  it,  in  reality,  was  an  inland  bill,  and  therefore  needed  a 
higher  stamp.  The  court  admitted  the  bill,  and  then  allowed 
evidence  to  show  it  was  in  fact  an  inland  bill,  and  left  it  to 
the  jury  to  say  which  it  was.^  Lord  Abinger,  in  this  case, 
gives  a  clear  statement  of  the  duty  of  the  judges  in  respect  to 
questions  of  fact  relating  to  the  admissibility  of  evidence  and 
the  competency  of  witnesses.  "All  questions  respecting  the 
admissibility  of  evidence  are  to  be  determined  by  the  judge, 
who  ought  to  receive  that  evidence,  and  decide  upon  it,  with- 
out any  reference  to  the  jury.  In  all  cases  where  objection  is 
made  to  the  competency  of  witnesses,  any  evidence  to  show 
their  incompetency  must  be  received  by  the  judge,  and  adjudi- 
cated on  by  him  alone."  * 


7  Sidney  School  Furniture  Co.  v.  Warsaw  School  Dist.,  122  Pa. 
494,  501,  15  Atl.  881,  9  Am.  St.  Rep.  124  ;  State  v.  McBryde,  97  N.  C. 
393,  1  S.  E.  925. 

8  Bartlett  v.  Smith,  11  Mees.  &  W.  483. 

0  Partlott  V.  Smith.  11  :\Ioes.  &  W.,  at  page  485.  See,  a^.so,  Gorton 
V.  Iladsell,  9  Cush.  (Mass.)  511. 


§  29)         PROVINCE  OF  COURT  AND  JURY.  61 

A  good  illustration  of  the  effect  of  a  determination  of  this 
preliminary  question  of  law  is  found  in  the  case  of  Ryder  v. 
Wombwell.^'' 

A.  sues  X.  for  value  of  diamond  shirt  buttons  and  silver 
goblet,  engraved  with  an  inscription.  X.  pleads  infancy,  and 
A.  replies  that  the  articles  were  necessaries.  In  the  absence  of 
any  evidence  of  anything  particular  in  the  defendant's  station 
rendering  it  exceptionally  necessary  for  him  to  have  such  ar- 
ticles, the  question  of  whether  they  were  necessaries  is  really 
determined  by  the  court's  determination  of  the  question  of  law 
as  to  the  propriety  of  submitting  the  case  to  the  jury.  Miller, 
J.,  says :  "Such  a  question  is  one  of  mixed  law  and  fact.  In 
so  far  as  it  is  a  question  of  fact,  it  must  be  determined  by  a 
jury,  subject,  no  doubt,  to  the  control  of  the  court,  who  may 
set  aside  the  verdict,  and  submit  the  questions  to  the  decision 
of  another  jury.  But  there  is  in  every  case,  not  merely  in  those 
arising  on  a  plea  of  infancy,  a  preliminary  question,  which  is 
one  of  law,  viz.  whether  there  is  any  evidence  on  which  the 
jury  could  properly  find  the  question  for  the  party  on  whom 
the  onus  of  proof  lies.  If  there  is  not,  the  judge  ought  to  with- 
draw the  question  from  the  jury,  and  direct  a  nonsuit  if  the 
onus  is  on  the  plaintiff,  or  direct  the  verdict  for  the  plaintiff  if 
the  onus  is  on  the  defendant.  It  was  formerly  considered  nec- 
essary in  all  cases  to  leave  the  question  to  the  jury  if  there  was 
any  evidence,  even  though  a  scintilla,  in  support  of  the  case ; 
but  it  is  now  settled  that  the  question  for  the  judge  (subject,  of 
course,  to  review)  is,  as  stated  by  Claude,  J.,  in  Jewell  v.  Pare,^^ 
not  whether  there  is  literally  no  evidence,  but  whether  there  is 
none  that  ought  reasonably  to  satisfy  the  jury  that  the  fact 
sought  to  be  proved  is  established."  ^- 

It  may  even  become  necessary  for  the  judge  to  determine 
the  fact  of  a  crime  having  been  committed  in  the  exercise  of 
his  function  in  passing  upon  the  admissibility  of  evidence. 
Upon  the  trial  of  X.  for  the  murder  of  A.  by  poisoning,  the 
prosecution  offered,  for  the  purpose  of  establishing  X.'s  mo- 
tive, evidence  to  prove  that,  before  the  death  of  one  B.,  the 

10  (1868)  L.  R.  4  Exch.  32. 

11  13  C.  B.,  at  page  916. 

12  Ryder  V.  Wombwell  (1S6S)  L.  R.  4  Bxcli.  32. 


62  QUESTIONS   OF   LAW   AND   QUESTIONS   OF    FACT.       (Ch.  3 

wife  of  A.,  X.  had  formed  the  plan  to  kill  B.,  then  induce  A. 
to  make  X.  the  beneficiary  under  a  policy  made  out  in  favor 
of  B.,  and  then  to  kill  A.  for  the  purpose  of  getting  the  in- 
surance. The  question  of  whether  enough  evidence  has  been 
given  of  the  alleged  plan  to  make  testimony  tending  to  show 
the  death  of  B.  by  arsenic  admissible  is  one  of  law. 

In  this  connection,  an  inquiry  becomes  interesting  as  to  how 
much  evidence  will  be  required  before  the  judge  will  be  jus- 
tified in  finding  the  fact  of  its  commission, — whether  the  judge 
will  be  bound  by  the  rule  applicable  to  the  jury,  to  wit,  that 
the  crime  must  be  proved  beyond  a  reasonable  doubt.  If  the 
purpose  of  the  inquiry  by  the  judge  into  the  facts  be  borne  in 
mind,  it  will  be  clearly  seen  that  the  principle  is  inapplicable. 
The  judge  does  not  find  the  fact  as  an  element  in  the  guilt  of 
the  accused,  but  only  for  the  purpose  of  ascertaining  whether, 
as  matter  of  law,  the  piece  of  evidence  in  question  should  be 
submitted  to  the  jury,  and  hence  the  fact  of  the  existence  of 
the  alleged  scheme  need  not  be  proved  beyond  a  reasonable 
doubt  in  order  to  render  such  testimony  admissible. ^^ 

The  cases  of  negligence  involve  some  nice  questions  as  to 
the  respective  provinces  of  court  and  jury.  The  cases  are  not 
always  clear  in  making  the  distinction  between  questions  of 
law  and  questions  of  fact.  The  same  element  is  present  in 
these  cases  which  appears  in  any  case  in  which  the  jury  must 
refer  to  its  own  standards,  acquired  from  its  own  experience, 
as  to  the  reasonable  or  prudent  actions  of  men.    This  element 


13  Com.  V.  Robinsou  (ISSS)  14G  Mass.  571,  16  N.  E.  452.  C,  Allen, 
J.,  says:  "But  where,  in  a  case  like  the  present,  the  admissibility 
of  testimony  depends  upon  the  determination  of  some  prior  fact  by  the 
court,  there  is  no  rule  of  law  that,  in  order  to  render  the  testimony 
admissible,  such  prior  fact  must  be  established  by  a  weight  of  evi- 
dence which  will  amount  to  a  demonstration,  and  shut  out  all  doubt  or 
question  of  its  existence.  It  is  only  necessary  that  there  should  be 
so  much  evidence  as  to  make  it  proper  to  submit  the  whole  evidence 
to  the  jury.  Ordinarily,  questions  of  fact  are  exclusively  for  the  jury, 
and  questions  of  law  for  the  court.  But  when,  in  order  to  pass  up- 
on the  admissibility  of  evidence,  the  determination  of  a  preliminary 
question  of  fact  is  necessary,  the  court,  in  the  due  and  orderly  course 
of  the  trial,  must  necessarily  determine  it,  as  far  as  is  necessary  for 
that  purpose,  and  usually  without  the  assistance,  at  that  stage,  of  the 
jury." 


§  29)         PROVINCE  OF  COURT  AND  JURY.  63 

has  been  noticed  before  in  connection  with  cases  for  malicious 
prosecution.  In  cases  for  negligence  it  appears  in  this  shape : 
Did  the  defendant  act  as  a  reasonably  prudent  person  would 
have  acted  under  similar  circumstances?  or,  in  the  case  of 
contributory  negligence,  did  the  plaintiff  take  such  precaution 
to  avoid  injury  as  a  reasonably  prudent  person  would  have  tak- 
en? These  questions  are  clearly  questions  of  fact,  such  as  the 
jury  must  answer,  not  only  from  the  evidence  submitted  to  it, 
but  also  from  its  own  experience  and  observation  as  to  the  ac- 
tions of  men.^*  This  is  not  saying  that  there  are  not  questions 
of  law  connected  with  the  subject  of  inquiry  in  a  case  of  neg- 
ligence. What  negligence  is ;  how  it  must  have  entered  into 
the  occurrence  as  a  cause  of  the  injury ;  the  effect  of  contribu- 
tory negligence  and  its  relation,  in  point  of  time  and  in  other 
respects,  to  the  negligence  charged  against  the  defendant — all 
become  the  subjects  of  questions  of  law,  which  must  be  ex- 
plained to  the  jury  by  the  judge  in  order  that,  having  answered 
the  questions  of  fact,  the  jury  may  give  a  proper  verdict.  Then, 
too,  there  is  always  that  prehminary  question  of  law  as  to 
whether  sufficient  evidence  has  been  submitted  to  make  it  a 
proper  thing  to  submit  the  case  to  the  jury.^^ 

14  Jones  V.  East  Tennessee.  V.  &  G.  R.  Ck).  (1888)  128  U.  S.  443,  9 
Sup.  Ct.  118,  32  L.  Ed.  478 :  In  an  action  by  A.  against  X.,  A.  testifies 
that,  being  alongside  X.'s  traclis,  he  crossed  in  the  usual  way ;  that 
he  could  not  see  an  approaching  train,  because  of  a  car  on  a  side 
track;  and  that  he  listened  as  he  started  to  cross.  There  was  also 
testimony  to  show  that  A.  ran  carelessly  across  the  track;  that  he 
might  have  guarded  himself  against  the  train  if  he  had  stopped  long 
enough  to  look  about  him.  It  was  held  that  the  question  of  whether 
the  plaintiff  may  not  have  been  as  careful  as  the  most  cautious  and 
prudent  man  would  have  been  was  a  question  for  the  jury. 

15  In  Jletropolitan  Ry.  Co.  v.  Jackson  (1877)  3  App.  Cas.  193,  200, 
Lord  Chancellor  Cairns  said:  "Your  lordships,  in  the  Case  of  Bridges, 
did  not  lay  down  any  new  rule  upon  this  subject.  Indeed,  it  is  im- 
possible to  lay  down  any  rule  except  that,  from  any  given  state  of 
facts,  the  judge  must  say  whether  negligence  can  legitimately  be  in- 
ferred, and  the  jury  whether  it  ought  to  be  inferred."  Bridges  v. 
North  London  Ry.  Co.  (1874)  L.  R.  7  H.  L.  213 :  A.  against  X.  for 
negligence.  A.,  a  commuter  on  X.'s  railway,  when  the  train  came  to 
a  stop  at  what  he  supposed  was  his  station,  alighted.  The  train  had 
not  reached  the  station,  but  the  conductor  had  called  out  the  name, 
and  the  train  had  stopped.  Afterwards  the  conductor  called  out, 
"Keep  your  seats!"  and  the  train  moved  up  to  the  platform.     This 


84  QUESTIONS   OF  LAW  AND  QUESTIONS   OF   FACT.       (Cb.  3 

In  certain  cases  the  judge  seems  to  have  exercised  the  pow- 
er of  determining  some  of  the  main  facts  in  issue.  The  most 
notable  example  of  this  is,  perhaps,  the  case  of  the  interpreta- 

was  after  A.  got  out.     A.  fell  on  a  pile  of  rubbish,  and  was  injured. 
The  station  was  at  the  entrance  to  a  tunnel.     A  part  of  the  platform 
was  in  the  tunnel.     The  car  from  which  A.  got  out  was  still  within 
the  tunnel.    It  was  about  dusk,  and  the  tunnel  was  filled  with  steam. 
A.  was  52  years  old,  and  nearsighted.   No  other  facts  being  proved,  is 
the  question  of  negligence  a  question  of  fact  for  the  jury?     It  was 
held  that  the  preliminary  question  of  law  as  to  whether  there  was 
sufficient  evidence  to  justify  a  jury  in  finding  negligence  should  be 
answered  in  the  affirmative,  and  the  facts  were  therefore  for  the  jury 
to  pass  upon.     Terre  Haute  &  I.  R.  Co.  v.  Voelker  (18S9)  129  111.  .540, 
22  N.  B.  20:     A.  against  X.  for  negligence  in  causing  death  of  A.'s 
husband,  M.     The  proof  showed  that  M.  did  not  stop  and  look  or  lis- 
ten as  to  approaching  trains  when  he  crossed  the  defendant's  tracks. 
Nothing  else  being  shown,  is  the  question  of  his  negligence  a  question 
of  law  for  the  court?     Mr.  Justice  Bailey  says:     "It  has  been  the  uni- 
form doctrine  of  this  court  that  negligence  is  ordinarily  a  question  of 
fact  for  the  jury.     Doubtless,  there  may  be  conduct  so  clearly  and 
palpably    negligent   that   all   reasonable   minds,    without    hesitation, 
would  so  pronounce  it.     When  that  is  so,  the  inference  of  negligence 
may  properly  be  said  to  be  a  necessary  one,  and  such  conduct  may 
be  treated  as  negligent  per  se.     *     *     *     It  is  doubtless  a  rule  of  law 
that  a  person  approaching  a  railway  crossing  is  bound,  in  so  doing, 
to  exercise  such  care,  caution,  and  circumspection  to  foresee  danger 
and  avoid  injury  as  ordinary  prudence  would  require,  having  in  view 
all  the  known  dangers  of  the  situation.     Just  precisely  what  such  re- 
quirements would  be  must  manifestly  differ  with  the  ever-varying 
circumstances  under  which  such   approach  may  be  made.     *     *     * 
To  omit  looking  and  listening  where  neither  can  do  any  good,  as  where 
the  track  is  hidden  from  sight  and  other  sounds  drown  the  noise  of 
the  cars,  is  not  contributory  negligence ;  and  there  are  other  circum- 
stances in  which  the  rule  of  looking  and  listening  cannot,  in  the  nature 
of  this  sort  of  thing,  be  inflexible.    Therefore,  to  go  upon  the  track  in 
disregard  of  it  is  not  necessarily,  and  as  a  question  of  law,  negli- 
gence."   Delaware,  L.  &  W.  R.  Co.  v.  Converse  (1891)  139  U.  S.  469, 
11  Sup.  Ct.  569,  35  L.  Ed.  213 :     A.  against  X.  for  injuries  caused  by 
negligence  of  defendant.     Proof  showed  that  X.,  just  before  crossing 
a  highway  with  its  train  of  cars,  made  a  flying  switch  with  the  rear 
portion  of  the  train,  so  that  the  engine  with  the  first  section  of  cars 
crossed  its  highway  100  feet  in  advance  of  the  rear  portion.    There 
was  no  light  on  the  rear  portion,  though  it  was  at  night,  and  no  means 
of  giving  warning.     A.,  after  passage  of  the  first  section,  attempted 
to  cross  the  track,  not  being  aware  of  the  approach  of  the  second  sec- 
tion.    The  court  instructed  the  jury  that  the  facts  showed  negligence 
on  the  part  of  X.     Justice  Harlan  says:     "Without  attempting  to  for- 


§  29)         PROVINCE  OF  COURT  AND  JURY.  65 

tion  of  written  contracts  or  other  documents.  The  same  rule 
also  has  been  applied  in  the  case  of  oral  agreements,  where 
the  terms  were  precise  and  explicit.^" 

mulate  a  general  rule  applicable  in  every  case  of  injury  to  person  or 
property, 'it  is  sufficient  here  to  say  that  the  severing  of  defendant's 
train  of  cars  in  the  nighttime,  leaving  a  part  of  them,  uncontrolled 
otherwise  than  by  ordinary  brakes,  to  run  acro^  a  public  highway,  at 
grade,  without  some  warning,  by  a  flagman  or  by  bell  or  whistle  or  in 
some  other  effective  mode,  that  they  were  approaching,  was  in  such 
obvious  disregard  of  the  rights  of  persons  using  that  highway  that 
the  court  was  justified  in  saying,  as  a  matter  of  law,  not  simply  that 
such  facts  were  evidence  of  negligence,  but  that  they  constituted  neg- 
ligence, upon  the  part  of  the  company.     It  was  justified  in  so  instruct- 
ing the  jury,  because  every  one  knows,  and  therefore  the  court  knew, 
that  such  use  of  defendant's  tracks,  where  they  crossed  the  coimtry 
road,  unnecessarily  endangered  the  safety  of  any  one  who,  at  the 
time,  crossed  the  railway  tracks  while  traveling  on  that  highway." 
In  other  words,  and  more  correctly  expressed,  the  question  of  fact 
is  so  clear  that  the  judge  is  justified  in  applying  the  rule  of  law  that 
a  fact  so  clear  as  not  to  admit  of  dispute  may  be  determined  by  the 
court.     The  nature  of  the  question  is  in  no  wise  changed.     Stackus  v. 
New  York  Cent.  &  n.  R.  R.  Co.  (1880)  79  N.  Y.  4G4 :     A.  against  X. 
for  injuries  caused  by  X.'s  negligence.     A.  was  crossing  X.'s  track  in  a 
covered  buggy,  stopped,  and  looked  and  listened,  but  did  not  let  down 
the  buggy  top  and  could  only  see  about  50  rods  one  way, — east.     The 
train  from  the  east  struck  his  buggy.     Church,   C.  J.,  says:     "The 
plaintiff  was  nonsuited  upon  the  ground  that  he  was  guilty  of  neg- 
ligence which  contributed  to  the  injury.     To  justify  this,  the  negli- 
gence must  appear  so  clearly  that  no  construction  of  the  evidence,  or 
inference  drawn  from  the  facts,  would  have  warranted  a  contrary 
conclusion,  and  that  a  verdict  of  the  jury  the  other  way  would  have 
been  set  aside  as  against  evidence." 

16  Spragins  v.  White  (1891)  108  N.  C.  449,  13  S-  E.  171:  A.  against 
X.  to  recover  the  value  of  goods  sold.  X.  testified  that,  at  time  of 
purchase,  he  agreed  to  buy  upon  A.'s  express  promise  to  deliver  them 
in  two  weeks.  A.  denied  this  promise.  The  judge  instructed  the 
jury  as  follows :  "But,  if  you  should  believe  that  this  agreement  and 
bargain  were  made,  then  you  must  inquire  and  determine  what  was 
meant  and  understood  by  it  by  the  parties  making  it," — which  was 
held  incorrect,  it  being  the  duty  of  the  court  to  construe  the  contract. 
The  court  say  on  appeal:  "But  where  the  court  presents  to  the  jury 
a  particular  view  of  the  facts,  and  this  embodies  the  terms  of  the 
contract,  which  are  in  themselves  precise  and  explicit,  the  court  should 
declare  their  legal  effect,  and  it  would  be  error  to  leave  this  to  be  de- 
termined by  the  jury.  In  such  a  case  the  rule  is  the  same  as  if  the 
contract  were  in  writing." 

m;'kelv.ev.(2d  ed.)— 5 


66  BURDEN   OF   PROOF.  (Ch.  4 

CHAPTER  IV. 
BURDEN  OF  PROOF. 

30-31.  Burden  of  Proof  and  Burden  of  Proceeding. 

32.  Burden  of  Proof  Never  Shifts. 

33.  Negative  Allegations  and  Burden  of  Proof. 

34.  Verdict  in  Accordance  with  Burden  of  Proof. 

35.  Burden  of  Proceeding  may  Shift. 

BURDEN  OF  PROOF  AND  BURDEN  OF  PROCEEDING. 

30.  Tlie  expression  "burden  of  proof"  has  been  used  in  a  dou- 

ble sense: 

(a)  As  meaning  tbe  duty  of  the  person  alleging  the  case  to 

prove  it. 

(b)  As  meaning  the  duty  of  the  one  party  or  the  other  to  in- 

troduce evidence. 

31.  The  first  is  the  proper  meaning  of  the  term,  and  in  fact  is 

implied  from  the  \(rords  themselves. 

The  theory  of  burden  of  proof  finds  its  application  in  the 
trial  of  every  case ;  yet  it  is  a  simple  principle  and  one  easily 
.  understood.  It  relates  to  our  way  of  trying  a  case,  and  has 
become  from  long  usage  so  thoroughly  a  part  of  our  system 
that  it  seems  the  only  reasonable  and  natural  method.  The 
burden  of  proving  a  case  (using  the  word  "case"  in  its  broad 
significance,  as  a  basis  of  recovery  or  ground  of  defense)  is 
naturally  upon  the  person  who  puts  it  forward.  The  burden 
of  proof  in  any  action  is  fixed  by  the  pleadings  upon  the  shoul- 
ders of  the  one  party  or  the  other.^  If  the  pleadings  consist 
of  the  allegation  of  certain  facts  by  the  plaintiff,  and  their 

1  Farmers'  Loan  &  Trust  Co.  v.  Siefke,  144  N.  Y.  354,  359,  39  N.  E. 
358,  359 ;  Heinemann  v.  Heard,  62  N.  Y.  448,  per  Church,  C.  J.,  at  page 
455;  Phipps  v.  Mahon,  141  Mass.  471,  473,  5  N.  E.  835,  836;  In  re 
Ehle's  Estate,  73  Wis.  445,  458,  41  N.  W.  627,  631 ;  Huston  v.  Harri- 
son, 168  Pa.  136,  150,  31  Atl.  987,  994;  Eastman  v.  Gould,  63  N.  H. 
89;  Osgood  v.  Groseclose,  159  111.  511,  42  N.  E.  886;  Chicago  &  A.  Ry. 
Co.  v.  .lennings,  114  111.  App.  622. 

That  the  rule  with  respect  to  burden  of  proof  is  the  same  in  equity 
as  at  law,  see  Pusey  v.  Wright,  31  Pa.  387,  394. 


§§  30-31)         BURDEX  OF  PROOF  AND  PROCEEDING.  67 

denial  by  the  defendant,  the  burden  of  proving  the  facts,  be 
they  negative  or  affinnative,  is  upon  the  plaintiff."  In  order 
to  recover,  he  must  prove  his  case.  If  the  plaintiff  alleges 
certain  facts,  and  the  defendant  admits  those  facts,  but  alleges 
other  facts,  which  he  claims  to  be  a  defense,  the  burden  of 
proof' is  on  the  defendant.^  It  is  not  upon  the  plaintiff,  be- 
cause it  is  not  necessary  for  him  to  prove  his  case,  on  account 
of  the  admission  of  all  the  facts.     An  admission  upon  the  trial 

2  In  Phipps  V.  Mahon,  141  Mass.  471,  5  N,  E.  835,  there  is  an  illustra- 
tion of  how  the  burden  of  proof  may  carry  with  it  the  task  of  sup- 
porting a  negative  proposition.     A.  sued  X.  on  an  account  for  $100,  a 
balance  of  a  sum  of  $200,  alleged  to  be  the  reasonable  value  of  his 
services  as  an  architect.     The  defendant  relied  upon  a  special  agree- 
ment to  do  the  work  for  $100,  which  sum  had  been  paid,  and  offered 
evidence  of  such  agreement.     It  was  held  that  the  burden  of  proof 
fixed  by  the  pleadings  upon  A.  involved  his  establishing  by  a  prepon- 
derance of  evidence  that  no  such  special  agreement  existed.     Starratt 
V.  Mullen,  148  Mass.  570,  20  N.  E.  178,  2  L.  R.  A.  697,  follows  the  same 
principle.     Pusey  v.  Wright,  31  Pa.  387 ;  Eastman  v.  Gould,  63  N.  H. 
89,  accord ;  Pendleton  v.  Cline,  85  Cal.  142,  24  Pac.  659,  contra.    The 
action   for   malicious  prosecution   furnishes   another   example   of   a 
plaintife  being  required,  by  the  burden  of  proof  which  rests  upon  him,, 
to  support  a  negative  proposition.     He  must  prove  by  a  preponderance 
of  evidence  that  the  prosecution  was  without  probable  cause.     King  v. 
Colvin,  11  R.  I.  582 ;  Ames  v.  Snider,  69  111.  376.     See,  also.  Com.  v. 
Locke,  114  Mass.  288,  294 :  Lenig  v.  Elsenhart,  127  Pa.  59,  17  Atl.  684  % 
Boulden  v.  Mclntire,  119  Ind.  574,  581,  582,  21  N.  E.  445,  448,  12  Am, 
St.  Rep.  453 ;  Weaver  v.  State,  89  Ga.  639,  15  S.  E.  840 ;  Kerr  v.  Free- 
man, 33  Miss.  292 ;  Veiths  v.  Hagge,  8  Iowa,  163,  192.     In  Colorado 
Coal  &  Iron  Co.  v.  U.  S.,  123  U.  S.  307,  8  Sup.  Gt  131,  31  L.  Ed.  182, 
Mr.  Justice  Matthews  (pages  317-320,  123  U.  S.,  and  pages  135-137,  8 
Sup.  Ct.,  31  L.  Ed.  182)  discusses  at  some  length  the  proof  of  negative 
propositions. 

3  An  example  of  the  fixing  of  the  burden  of  proof  upon  the  defend- 
ant by  the  pleadings  is  found  in  a  case  where  the  defense  of  payment 
is  set  up  to  an  action  on  a  promissory  note.  Here  the  defendant  ad- 
mits what  the  plaintiff  would  have  to  prove  to  make  out  a  prima 
facie  case,  and  alleges  affirmatively  a  fact  which  will  relieve  him  from 
liability ;  the  issue  is  therefore  raised  upon  defendant's  affirmative 
allegation,  and  upon  him  rests  the  burden  of  proof.  Kendall  v.  Brown- 
son,  47  N.  H.  186 ;  Swift  &  Co.  v.  Mutter,  115  111.  App.  374.  Adverse 
possession  by  defendant  alleged  as  a  defense  in  ejectment  is  another 
illustration  of  this.  Fuller  v.  Worth,  91  Wis.  406,  64  N.  W.  995.  Sui- 
cide alleged  as  a  defense  to  an  insurance  policy.  Home  Ben.  Ass'n 
V.  Sargent,  142  U.  S.  691,  12  Sup.  Ct.  332,  35  L.  Ed.  1160 ;  Stokes  v. 
Stokes,  155  N.  Y.  581,  50  N.  E.  342. 


68  BURDEN   OF   PROOF.  (Ch.  4 

does  not  affect  the  burden  of  proof.  To  relieve  the  plaintiff 
it  must  be  a  formal  admission  in  the  defendant's  pleading  of 
the  facts  which  constitute  the  plaintiff's  case.* 

The  defendant,  if  he  sets  up  in  his  answer  other  facts  which 
he  claims  to  be  a  defense,  is  then  the  one  who  has  alleged  the 
facts  which  are  in  issue,  and  he  must  prove  them. 


BURDEN   OF   PROOF  NEVER   SHIFTS. 

32.    The  burden  of  proof  never  changes.     It  remains  to  the  end 
of  the  case  x^ith  the  party  T^ho  has  it  at  the  outset. 

After  all  the  evidence  is  in,  whether  introduced  by  the  plain- 
tiff or  by  the  defendant,  it  must  appear  that  the  person  who 
had  the  burden  of  proof  has  a  preponderance  of  the  evidence 
in  his  favor,  if  he  would  win  his  case.^     The  burden  of  proof 

4  Lake  Ontario  Nat.  Eauk  v.  Judson,  122  N.  Y.  278,  25  N.  E.  367. 

5  Farmers'  Loan  &  Trust  Co.  v.  Slefke,  144  N.  T.  354,  39  N.  E.  358; 
Scott  V.  Wood.  81  Cal.  398,  401,  22  Pac.  871,  872;  Stokes  v.  Stokes, 
155  N.  Y.  581,  50  N.  E.  342. 

Abrath  v.  Northeastern  Ry.  Co.  (1883)  11  Q.  B.  Div.  79 :  In  an  ac- 
tion for  malicious  prosecution  by  A.  against  X.,  tlie  .judge  instructed 
the  jury :  "First.  Did  the  defendants  take  reasonable  care  to  in- 
form themselves  of  the  true  state  of  the  case?  Secondly.  Did  they 
honestly  believe  the  case  which  they  laid  before  the  magistrate?  If 
both  questions  are  answered  in  the  affirmative,  *  *  *  that  is  a 
verdict  for  the  defendants,  because,  please  bear  in  mind  that  it  is  for 
the  plaintiff  to  prove  that  they  did  not.  *  *  *  it  lies  on  the  plain- 
tiff to  prove  that  the  railway  company  did  not  talve  reasonable  care 
to  inform  themselves.  The  meaning  of  this  is  that  if  you  are  not  satis- 
fied whether  they  did  or  did  not,  inasmuch  as  the  plaintiff  is  bound  to 
satisfy  you  that  they  did  not,  the  railway  company  would  be  entitled 
to  your  verdict  on  that  point."  Brett,  M.  R.,  says :  "But,  then,  it  is 
contended  (I  think  fallaciously)  that  if  the  plaintiff  has  given  prima 
facie  evidence  which,  unless  it' be  answered,  will  entitle  him  to  have 
the  case  decided  in  his  favor,  the  burden  of  proof  is  shifted  onto 
the  defendant  as  to  the  decision  of  the  question  itself.  *  *  *  i 
cannot  assent  to  it.  It  seems  to  me  that  the  propositions  ought  to  be 
stated  thus:  The  plaintiff  may  give  prima  facie  evidence,  which,  un- 
less it  be  answered  either  by  contradictory  evidence  or  by  thy  evi- 
dence of  additional  facts,  ought  to  lead  the  jury  to  find  the  question 
in  his  favor.  The  defendant  may  give  evidence  either  by  contradict- 
ing the  plaintiff's  evidence  or  by  proving  other  facts.  The  jury  have 
to  consider,  upon  the  evidence  given  upon  both  sides,  whether  they 


§  32)  BURDEN   OF  PROOF   NEVER  SHIFTS.  69 

fixes  upon  the  party  who  has  the  duty  of  first  going  forward 
with  the  case.  If  he  fails  to  introduce  any  evidence  at  all,  or 
if  he  fails  to  introduce  sufficient  evidence  to  justify  a  submis- 
sion of  the  case  to  the  jury,  the  case,  without  any  evidence 
being  introduced  by  the  other  party,  must  go  against  him.® 
If  he  Introduces  enough  evidence  to  justify  a  submission  of 
the  case  to  the  jury,  the  case  may  still  be,  as  it  were,  hanging 
in  the  balance.  The  jury  may  or  may  not  find  from  the  evi- 
dence introduced  that  he  has  proved  his  case.^  If,  however, 
he  has  introduced  sufficient  evidence  to  make  out  what  is 
known  as  a  "prima  facie  case,"  then,  in  the  absence  of  evi- 
dence to  controvert  such  case,  the  jury  would  be  bound  to  find 
— for  the  judge  would  so  instruct  them — in  his  favor. 

Right  here  we  run  up  against  that  other  sort  of  burden  of 
proof  noticed  above,  which  is  not  really  burden  of  proof  at 
all,  but  only  the  use  of  that  term  to  express  something  very 
different.  When  the  plaintiff  has  introduced  enough  evidence 
to  make  out  a  prima  facie  case,  the  defendant,  unless  he  would 

are  satisfied  in  favor  of  the  plaintifE  with  respect  to  the  question 
which  he  calls  upon  them  to  answer.  If  they  are,  they  must  find  for 
the  plaintiff;  but  if,  upon  a  consideration  of  the  facts,  they  come 
clearly  to  the  opinion  that  the  question  ought  to  be  answered  against 
the  piaiutifC,  they  must  find  for  the  defendant.  Then  comes  the  dif- 
ficulty: Suppose  that  the  .iury,  after  considering  the  evidence,  are 
left  in  real  doubt  as  to  which  way  they  are  to  answer  the  question 
put  to  them  on  behalf  of  the  plaintiff ;  in  that  case,  also,  the  burden 
lies  on  the  plaintiff.  And  if  the  defendant  has  been  able  by  the  addi- 
tional facts  which  he  has  adduced  to  bring  the  minds  of  the  whole 
jury  to  a  real  state  of  doubt,  the  plaintiff  has  failed  to  satisfy  the 
burden  of  proof  which  was  upon  him." 

6  In  Kentucky  the  Civil  Code  of  Practice  (section  526)  provides, 
"The  burden  of  proof  in  the  whole  action  lies  on  the  party  who  would 
be  defeated  if  no  evidence  were  given  on  either  side."  This  recog- 
nizes the  true  meaning  of  the  term.  See  Royal  Ins.  Co.  v.  Schwing, 
87  Ky.  410,  415,  9  S.  W.  242,  244 ;  Crabtree  v.  Atchison,  93  Ky.  338, 
20  S.  W.  260 ;  Veiths  v.  Hagge,  8  Iowa,  163,  192 ;  Lehman  v.  McQueen, 
65  Ala.  570 ;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Taylor,  57  Ark.  136,  20 
S.  W.  1083.  The  right  to  open  and  close  which  follows  the  burden  of 
proof  may  be  determined  by  a  similar  test.  Lake  Ontario  Nat.  Bank 
v.  Judson,  122  N.  Y.  278,  284,  25  N.  E.  367,  369. 

7  Quock  Ting  v.  U.  S.,  140  U.  S.  417,  11  Sup.  Ct.  733,  851,  35  L.  Ed. 
599,  to  the  effect  that  the  jury  need  not  necessarily  find  in  accordance 
with  uncontradicted  evidence;  they  may  disbelieve  it. 


70  BURDEN    OF   PROOF.  (Ch.  4 

see  the  verdict  for  the  plaintiff,  must  take  up  the  case,  and 
introduce  evidence  to  controvert  or  weaken  the  effect  of  that 
which  the  plaintiff  has  introduced.  This  is  the  burden  of 
going  forward  with  the  evidence,  or  the  "burden  of  proceed- 
ing," as  it  may  be  called  to  distinguish  it  from  the  "burden 
of  proof."  ^  The  defendant  may,  in  his  turn,  introduce  such 
evidence  as  will  make  it,  in  the  absence  of  further  evidence 
on  the  part  of  the  plaintiff,  clear  that  the  facts  are  in  his  favor  ; 
the  verdict,  if  the  evidence  stopped  at  this  point,  would  be  for 
him,  and  the  burden  of  proceeding  is  shifted  again  to  the  plain- 
tiff. Thus,  in  the  course  of  a  trial  upon  the  various  facts  in 
issue,  the  burden  of  proceeding  may  shift  from  one  party  to 
the  other.^  The  burden  of  proof,  however,  remains  upon  the 
shoulders  of  the  party  who  had  it  at  the  outset,  and  is  unaf- 
fected by  the  evidence  as  the  trial  proceeds.^"     Suppose  A., 

8  Scott  V.  Wood,  81  Cal.  398,  22  Pae.  871.  In  the  case  of  Abrath  v. 
Northeastern  Ry.  Co.,  supra,  Bowen,  L.  J.,  discusses  the  question  on 
the  theoiy  that  burden  of  proof  means  burden  of  going  forward  with 
the  evidence.  He  says :  "The  question  of  onus  of  proof  is  only  a  rule 
for  deciding  on  whom  the  obligation  of  going  further,  if  he  wishes  to 
win,  rests."  This  is  an  example  of  the  very  frequent  misuse  of  the 
expression. 

9  State  ex  rel.  Leonard  v.  Rosenthal,  123  Wis.  442,  102  N.  W.  49. 

10  The  language  of  Andrews,  C.  J.,  in  Farmers'  Loan  &  Trust  Go. 
y.  Siefke,  144  N.  Y.  354,  359,  39  N.  E.  358,  359,  is  as  follows:  "There 
is  confusion  sometimes  in  treating  of  the  burden  of  proof,  arising  out  of 
unexact  definitions.  The  burden  is  upon  a  plaintiff  to  establish  his 
cause  of  action  when  it  is,  in  proper  form,  denied  by  the  other  party. 
In  actions  on  a  promissory  note  this  burden  is,  in  the  first  instance, 
discharged  by  giving  evidence  tending  to  show  that  the  note  was  sign- 
ed by  the  defendant.  Proof  of  signing  also  identifies  and  proves  the 
seal,  when  the  action  is  upon  a  sealed  instrument.  This  prima  facie 
establishes  the  cause  of  action.  But  a  defendant  is  not  concluded. 
He  may  give  evidence,  under  a  general  denial,  to  show  that  the  sig- 
nature is  a  forgery,  or  that  the  note  had  been  materially  altered  by  the 
plalntifC  without  his  consent,  or  many  other  things  which  miglit  be 
mentioned,  showing  that  the  plaintiff  never  had  a  cause  of  action. 
It  is  very  common  to  say  in  such  cases  that  the  burden  is  upon  the 
defendant  to  establish  the  fact  relied  upon.  All  that  this  can  prop- 
erly mean  is  that  when  the  plaintiff  has  established  a  prima  facie 
case  the  defendant  is  bound  to  controvert  it  by  evidence,  otherwise 
he  will  be  cast  in  .judgment.  When  such  evidence  is  given,  and  the 
case,  upon  the  whole  evidence,— that  for  and  that  against  the  fact  as- 
serted by  the  plaintiff,— is  submitted  to  court  or  jury,  then  the  ques- 


§  32)  BURDEN    OF   PROOF   NEVER    SHIFTS.  71 

a  second  mortgagee,  brings  an  action  against  X.,  the  first 
mortgagee,  to  redeem  the  premises.  X.  denies  the  execution 
and  delivery  of  the  second  mortgage  to  A.  A.  puts  in  evi- 
dence the  mortgage,  which  contains  the  usual  attestation  clause, 
and  proves  its  execution.  The  burden  of  proof  as  to  execu- 
tion arfd  delivery  before  the  introduction  of  any  evidence  was 
upon  the  plaintiff,  and  the  proof  above  mentioned  does  not 
shift  it.     The  burden  of  proceeding,  however,  is  shifted. 

It  has  been  held  that  in  certain  cases,  where  the  proof  of  a 
fact  lies  particularly  within  the  knowledge  of  the  adverse  par- 
ty, there  such  party  has  the  burden  of  disproving  the  fact  al- 
leged.^^  Is  not  the  true  explanation  this:  Where  it  appears 
in  evidence  from  the  pleadings,  on  the  trial  of  a  case,  that  a 
certain  fact  alleged  by  the  plaintiff  is  peculiarly  within  the 
knowledge  of  the  defendant,  the  failure  of  the  defendant  to 
give  such  knowledge  to  the  jury,  when,  were  the  fact  in  his 
favor,  he  would  naturally  do  so,  is  a  sufficient  circumstance 
to  justify  the  jury  in  inferring  that  the  fact  is  in  truth  against 
him.^^     The  burden  of  proof  is  not  shifted,  but  only  the  bur- 


tion  of  the  burden  of  proof  as  to  any  fact,  in  its  proper  sense,  arises, 
and  rests  upon  tlie  party  upon  whom  it  was  at  the  outset,  and  is  not 
shifted  by  the  course  of  the  trial.  *  *  *  "  See,  also,  Heinemann  v. 
Heard,  62  N.  Y.  448,  455 ;  Eastman  v.  Gould,  63  N.  H.  89 ;  Marshall 
Livery  Go.  v.  McKeh-y,  55  Mo.  App.  240;  State  v.  Crawford,  11  Kan. 
34;  Appeal  of  O'Brien,  100  Me.  156,  60  Atl.  880.  Where,  in  a  crim- 
inal case,  the  defense  is  an  alibi,  the  burden  of  proof  is  not  on  the 
defense  to  prove  that  the  accused  was  not  present  at  the  time  of  the 
commission  of  the  crime,  but  is  on  the  prosecution  to  prove,  beyond  a 
reasonable  doubt,  when  the  evidence  is  all  in,  that  the  accused  was 
present.  Gom.  v.  Choate.  105  Mass.  451,  459;  Briceland  v.  Gom.,  74 
Pa.  463,  470.  The  fact  that  a  third  party  intervenes  has  no  effect  on 
the  burden  of  proof  as  fixed  by  the  pleadings.  Eastmore  v.  Brinkley, 
113  Ga.  637,  39  S.  E.  105. 

11  Robinson  v.  Robinson,  51  111.  App.  317;  Williams  v.  People,  121 
111.  84,  11  N.  R  881 ;  Ford  v.  Simmons,  13  La.  Ann.  397 ;  Northwest- 
ern Mut  Life  Ins.  Go.  v.  Galloway  (Ky.)  38  S.  W.  430;  Gook  v.  Guir- 
kin,  119  N.  C.  13,  25  S.  E.  715 ;  Texas  Midland  R.  Go.  v.  Jumper,  24 
Tex.  Giv.  App.  671,  60  S.  W.  797. 

12  Bowen,  L.  J.,  in  Abrath  v.  N.  E.  Ry.  Co.  11  Q.  B.  D.  440,  457, 
says :  "It  has  been  said  that  an  exception  exists  in  those  cases  where 
the  facts  lie  peculiarly  within  the  knowledge  of  the  opposite  party. 
The  counsel  for  the  plaintiff  have  not  gone  the  length  of  contending 
that  in  all  those  cases  the  onus  shifts,  'and  that  the  person  within 


72  BURDEN   OF   PROOF.  (Ch.  4 

den  of  proceeding.  Chief  Justice  Shaw  gives  a  very  clear 
statement  of  the  true  nature  of  the  burden  of  proof,  as  fol- 
lows: "It  may  be  useful  to  say  a  word  upon  the  subject  of 
the  burden  of  proof.  It  was  stated  here  that  the  plaintiff  had 
made  out  a  prima  facie  case,  and  therefore  the  burden  of  proof 
was  shifted  and  placed  upon  the  defendant.  In  a  certain 
sense  this  is  true.  Where  the  party  having  the  burden  of 
proof  establishes  a  prima  facie  case,  and  no  proof  to  the  con- 
trary is  offered,  he  will  prevail.  Therefore,  the  other  party, 
if  he  would  avoid  the  effect  of  such  prima  facie  case,  must 
produce  evidence  of  equal  or  greater  weight  to  control  it,  or 
he  will  fail.  Still,  the  proof  upon  both  sides  applies  to  the 
affirmative  or  negative  of  one  and  the  same  issue  or  proposi- 
tion of  fact;  and  the  party  whose  case  requires  the  proof  of 
that  fact  has  all  along  the  burden  of  proof.  It  does  not  shift, 
though  the  weight  in  either  scale  may  at  times  preponderate. 
But  when  the  party  having  the  burden  of  proof  gives  com- 
petent and  prima  facie  evidence  of  a  fact,  and  the  adverse 
party,  instead  of  producing  proof  which  would  go  to  negative 
the  same  proposition  of  fact,  proposes  to  show  another  and  a 
distinct  proposition,  which  avoids  the  effect  of  it,  there  the 
burden  of  proof  shifts,  and  rests  upon  the  party  proposing  to 
show  the  latter  fact"  ^^ 

It  is  quite  evident  that  even  here  the  learned  Chief  Justice 
uses  the  term  "shifts"  in  a  confusmg  sense.  If  the  "other  and 
distinct  proposition"  is  a  part  of  an  affirmative  defense,  then 
the  burden  of  proof  does  not  shift,  but  was  in  the  beginning, 
as  to  this  affirmative  defense,  upon  the  defendant,  and  natural- 
ly, when  the  defendant  takes  up  the  question,  he  must  assume 
the  burden. 

In  criminal  cases  the  rule  with  respect  to  the  burden  of  proof 
is  the  same  as  in  civil.  The  burden  rests  upon  the  prosecution, 
and  remains  there  throughout  the  case.^*  No  matter  how 
strong  the  evidence,  there  is  no  point  reached  w^here  the  bur- 

whose  knowledge  the  truth  peculiarly  lies  is  bound  to  prove  or  disprove 
the  matter  in  dispute.  I  think  a  proposition  of  that  kind  cannot  be 
maintained.     *     *     * " 

13  Powers  V.  Russell  (3832)  13  Pick.  (Mass.)  69,  76,  77;  Laubheimer 
V.  Naill,  88  Md.  174,  40  Atl.  888. 

14  People  V.  Garbutt,  17  Mich.  9,  97  Am.  Dec.  162,  furnishes  a  strong 
illustration  of  this.  The  question  was  as  to  where  the  burden  of  proof 
rested,  upon  a  defense  of  insanity  being  set  up  to  a  charge  of  murder. 


§  33)      NEGATIYE  ALLEGATIONS  AND  BUKDEN  OF  PROOF. 


73 


den  changes;  and,  at  the  end  of  the  case,  the  jury  must  still 
ask,  "Has  the  prosecution  established  its  case?"  and  not,  "Has 
the  defense  proved  its  defense?"  In  the  following-  illustration 
the  strictness  of  this  doctrine  will  be  seen:  On  the  trial  of 
X.  for  murder,  it  is  proved  by  indisputable  circumstantial  evi- 
dence that  A.  was  shot  by  X.  at  the  dead  of  night,  in  the  rear 
of  X.'s  house ;  that  A.  was  a  friend  of  X. ;  and  there  had  been 
no  trouble  between  them ;  that  X.  said,  after  the  shooting,  "I 
have  shot  my  best  friend."  Although  no  evidence  is  intro- 
duced by  X.  to  justify  his  act,  the  burden  of  proof  still  remains 
with  the  prosecution.^'' 

NEGATIVE  ALLEGATIONS    AND   BURDEN    OF  PROOF. 

33.    Negative   allegations  have  no   effect  upon  tlie  burden   of 
proof. 

The   cases   are   somewhat   confusing  upon  the   subject  of 
negative  allegations  and  the  application  of  the  principles  of 

It  was  held  that  sanity  was  a  part  of  the  people's  case,  and  while  it 
was  not  necessary,  in  the  first  instance,  to  go  into  the  question,  yet, 
if  controverted  by  defendant,  the  burden  rested  upon  the  prosecution 
to  establish  it.  See  opinion  of  Cooley,  C.  J.,  pages  21-23.  See.  also, 
Fife  V.  Com.,  29  Pa.  429 ;  Horn  v.  State,  30  Tex.  App.  541,  17  S.  W. 
1094 ;  State  v.  Crawford.  11  Kan.  34,  45. 

15  People  V.  Downs  (1890)  123  N.  Y.  558,  25  N.  E.  988.  The  judge  at 
the  trial  charged:  "Now,  it  is  for  you  to  say  to  which  one  of  these 
classes  of  crime  this  evidence  points.  There  has  been  a  homicide; 
there  has  been  a  human  life  taken.  It  becomes  a  serious  question  as 
to  whether  or  not  a  man  shall  execute  the  law  or  execute  vengeance 
upon  his  fellow.  If  he  does,  he  must  do  it  at  the  peril  of  either  being 
punished  for  It,  or  being  able  to  excuse  himself,  when  called  upon  to 
answer  to  the  wrong,  within  one  of  the  excuses  that  is  fixed  and  given 
in  the  law.  If  he  is  not,  he  must  be  found  guilty  of  one  or  the  other 
of  the  crimes  which  are  imputed  to  him  by  reason  of  the  homicide." 
This  charge  was  clearly  erroneous,  as  the  opinion  of  Judge  Finch 
on  appeal  points  out:  "While  there  is  no  legal  implication  of  the 
crime  of  murder  from  the  bare  fact  of  a  homicide,  the  jury  may  in- 
fer it  as  a  fact,  and  may  do  so  even  though  no  motive  is  assigned  for 
the  act.  and  the  case  is  bare  of  circumstances  for  explanation.  People 
V.  Conroy.  97  N.  T.  77.  But  the  inference  is  one  of  fact,  which  the 
jury  must  draw,  if  such  seems  to  them  to  be  their  duty,  and  not  one 
of  law,  which  the  court  may  impose  upon  their  deliberation,  and 
then,  upon  that  assumption,  shift  the  burden  upon  the  prisoner,  and 
require  him  to  prove  that  no  crime  has  in  fact  been  committed." 


74  BURDEN   OF   PROOF.  ( Ch.  4 

burden  of  proof  thereto.  One  distinction  which  is  often  lost 
sight  of  will  help  to  reconcile  many  seemingly  conflicting  de- 
cisions. There  are  two  sorts  of  negative  propositions :  (1) 
Those  which  are  a  necessary  part  of  the  case  sought  to  be  es- 
tablished, and  which  must  be  specially  alleged  in  the  pleading. 
(2)  Those  which  are  merely  implied  from  the  allegation  of 
affirmative  facts,  since  the  existence  of  such  affirmative  facts 
preclude  the  negative  thereof. 

The  case  of  malicious  prosecution,  perhaps,  affords  the  best 
example  of  a  negative  proposition  of  the  first  class.  In  such 
case  it  is  necessary  for  the  plaintiff  to  allege  that  the  prosecu- 
tion was  without  reasonable  and  probable  cause.  This  is  an 
essential  element  in  his  case,  and  he  must  establish  this  nega- 
tive fact  by  a  preponderance  of  evidence  in  order  to  recover. 
As  to  this  fact,  therefore,  the  burden  of  proof  is  with  the  plain- 
tiff at  the  start,  and  remains  with  him  throughout  the  trial. 
That  it  is  a  negative  fact  has  no  bearing  in  the  case  and  does 
not  affect  the  burden  of  proof.^® 

As  to  the  burden  of  proceeding, — i.  e.,  of  introducing  evi- 
dence— that  at  the  start  is  also  with  the  plaintiff.  He  must 
make  a  prima  facie  case  on  his  negative  proposition  before  the 
defendant  need  go  forward  with  any  evidence. 

Of  the  second  class  of  negative  propositions,  perhaps  as 
good  an  illustration  as  any  is  found  in  a  case  where  the  plain- 
is  Abrath  v.  Northeastern  Railway  Co.,  11  Q.  B.  D.  440,  457.  The 
following  from  the  opinion  of  Bowen,  L.  J.,  is  as  clear  a  statement 
on  this  subject  as  will  be  foimd:  "Now,  in  an  action  for  malicious 
prosecution,  the  plaintiff  has  the  burden  throughout  of  establishing 
that  the  circumstances  of  the  prosecution  were  such  that  a  judge  can 
see  no  reasonable  or  probable  cause  for  instituting  it.  In  one  sense 
that  is  the  assertion  of  a  negative,  and  we  have  been  pressed  with  the 
proposition  that,  when  a  negative  is  to  be  made  out,  the  onus  of  proof 
shifts.  That  is  not  so.  If  the  assertion  of  a  negative  is  an  essen- 
tial part  of  the  plaintiff's  case,  the  proof  of  the  assertion  still  rests 
upon  the  plaintiff.  The  terms  "negative"  and  "affirmative"  are,  after 
all,  relative,  and  not  absolute.  In  dealing  with  a  question  of  negli- 
gence, that  term  may  be  considered  either  as  negative  or  affirmative, 
according  to  the  definition  adopted  in  measuring  the  duty  which  is 
neglected.  Wherever  a  person  asserts  affirmatively  as  part  of  his  case 
that  a  certain  state  of  facts  is  present  or  absent,  or  that  a  particular 
thing  is  insufficient  for  a  particular  purpose,  that  is  an  averment 
which  he  is  bound  to  prove  positively." 


§  34)     VERDICT  IN  ACCORDANCE  WITH  BURDEN  OF  PROOF.       75 

tiff  seeks  to  recover  upon  an  express  contract.  In  his  com- 
plaint he  sets  forth  the  contract,  and  the  burden  of  proof  is 
upon  him  to  estabhsh  its  existence  by  a  preponderance  of  evi- 
dence. The  affirmative  ahegation  of  the  contract  rehed  upon 
impHes  the  negative  allegation  that  the  contract  was  not  some- 
thing 'different  from  that  alleged.  If,  therefore,  the  defendant 
alleges  as  a  defense  that  there  was  a  special  contract  under  the 
terms  of  which  there  is  no  liability,  while  the  burden  of  pro- 
ceeding,— i.  e.,  of  introducing  evidence  as  to  such  special  con- 
tract— is  upon  him,  the  burden  of  proof  still  remains  with  the 
plaintiff.  He  must  satisfy  the  jury  by  a  preponderance  of 
evidence  that  no  such  special  agreement  was  made.^'^ 

It  will  be  found  that  most  cases  which  are  cited  to  support 
the  proposition  that  the  burden  of  proof  shifts,  because  of  a 
negative  allegation,  to  the  shoulders  of  the  other  party,  who 
must  establish  the  affirmative,  are  cases  where  what  is  really 
being  talked  of  is  burden  of  proceeding.^^ 


VERDICT  IN  ACCORDANCE  "WITH  BURDEN  OF  PROOF. 

34.  "Where  the  evidence  introduced  is  evenly  balanced,  the  ver- 
dict must  be  against  the  party  upon  xirhoni  the  burden 
of  proof  lies. 

The  burden  of  proof  thus,  as  it  always  starts  a  case,  may 
also  end  it.  If  the  evidence  is  evenly  balanced,  the  case  is  in 
exactly  the  position  at  the  conclusion  as  it  was  at  the  begin- 
ning, and  it  must  go  against  the  party  who  has  the  burden  of 

17  For  instances  illustrative  of  the  principles  above  set  forth,  see 
cases  cited  under  note  2. 

18  In  California  it  has  been  attempted  to  take  care  of  the  subject 
by  a  statute,  and  there  is  a  provision  (section  1869,  Code  Civ.  Proc.) 
as  follows :  "Each  party  must  prove  his  own  affirmative  allegations. 
Evidence  need  not  be  given  in  support  of  a  negative  allegation,  ex- 
cept when  such  negative  allegation  is  an  essential  part  of  the  state- 
ment of  the  right  or  title  on  which  the  cause  of  action  or  defense  is 
founded  nor  even  in  such  case  when  the  allegation  is  a  denial  of  the 
existence  of  a  document,  the  custody  of  which  belongs  to  the  opposite 
party."  For  illustrations  of  the  manner  in  which  this  section  has 
been  applied,  see  Petaluma  Paving  Co.  v.  Singley,  136  Cal.  616,  69  Pac. 
426 ;  Dirks  v.  California  Safe  Dep.  &  Trust  Co.,  136  Cal.  84,  68  Pac. 
487. 


76  BUKDEN   OF   PROOF.  (Ch.  4 

proof.  ^^  A.  sues  X.  for  the  value  of  services  rendered  by  him 
as  an  election  agent.  A.  proves  the  services.  X.  alleges, 
and  introduces  evidence  to  show,  that  the  services  were  to  be 
gratuitous,  and  the  jury  is  in  doubt  as  to  the  fact.  Verdict 
must  be  for  X.  Parke,  B.,  says  in  a  leading  case :  ^°  "The 
burden  of  proof  was  never  altered.  The  plaintiff,  being  a  pro- 
fessional man  and  performing  professional  services,  was  prima 
facie  entitled  to  remuneration.  Then  came  the  evidence  for 
the  defendant  to  show  that  the  agreement  was  that  the  plaintiff 
should  not  be  paid.  After  this  was  given,  the  question  for 
the  jury  still  remained  whether,  on  the  whole  evidence,  the 
plaintiff  had  made  out  his  title  to  remuneration.  I  think,  if 
I  had  been  a  juryman,  that,  upon  the  facts  in  the  case,  I  should 
have  found  my  verdict  against  the  party,  whether  the  plaintiff 
or  the  defendant,  on  whom  I  was  told  by  the  judge  that  the 
burden  of  proof  lay." 


BURDEN  OF  PROCEEDING  MAY  SHIFT. 

35.  A  prima  facie  case  has  no  efiPect  on  the  burden  of  proof, 
thong^h  it  shifts  from  the  shoulders  of  him  ivho  has 
made  it  the  burden  of  proceeding. 

This  is  in  accordance  with  the  principles  already  laid  down 
as  applicable  to  burden  of  proof,  and  emphasizes  the  distinc- 
tion between  burden  of  proof  and  burden  of  proceeding.  The 
making  of  a  prima  facie  case  by  the  party  on  whom  the  bur- 
den of  proof  rests  merely  satisfies  the  burden  of  proof  for 
the  time  being,  and  until  the  other  party  introduces  some  evi- 
dence to  meet  such  prima  facie  case.  A  party,  unless  he  has 
the  burden  of  proof,  is  never  obliged  to  make  a  prima  facie 
case.  He  will  win  if  he  introduces  sufficient  evidence  merely 
to  meet  the  prima  facie  case  made  against  him,  and  leave  the 
question  in  doubt.  Crowninshield  v.  Crowninshield  ^^  shows 
the  distinction  between  prima  facie  case  and  burden  of  proof. 
A.  offered  for  probate  a  will.     X.  alleges  that  the  testator  was 

19  Louisville  &  N.  R.  Co.  v.  Binion,  98  Ala.  570,  574,  14  South.  619, 
620;  Chicago  Ti-ansit  Co.  v.  Camphpll,  110  111.  App.  3GG. 

20  Hingeston  v.  Kelly  (1849)  18  Law  J.  Exch.  300. 
212  Gray  (Mass.)  524  (1854), 


§  35)  BURDEN   OF   PROCEEDING   MAT   SHIFT.  77 

of  unsound  mind.  A.  proves  the  execution  of  the  will,  by  the 
testimony  of  the  subscribing  witness,  and  rests.  Upon  whom 
is  the  burden  of  proof?  Thomas,  J.,  says :  "Nor,  though  the 
concurring  testimony  of  the  subscribing  witnesses  may  make  a 
prima  iacie  case,  is  there  any  shifting  of  the  burden  of  proof? 
The  burden  of  proof  does  not  shift  when  a  prima  facie  case  is 
made  out.  Nor  does  the  existence  of  a  general  presumption 
that  men  are  sane  change  the  burden  of  proof.  It  may  stand 
instead  of  proof.  It  may  make  a  prima  facie  case.  Where 
the  question  of  sanity  is  made,  it  may  render  necessary  greater 
weight  of  evidence  in  him  who  seeks  to  impeach  it.  But  it 
does  not  change  the  burden  of  proof ;  but,  where  the  evidence 
is  in  on  the  one  side,  on  the  other  the  issue  still  continues  as 
betore,  and  he  to  whose  case  the  proof  of  such  sanity  is  neces- 
sary has  the  burden."  ^^ 

2  2  See  Baxter  v.  Abbott,  7  Gray  (Mass.)  71,  to  effect  that  presump- 
tion of  sanity  is  applicable  to  wills  as  well  as  contracts.  In  Barry  v. 
Butlin  (1S3S)  2  Moore,  P.  C.  480,  A.  offers  for  probate  a  will  which  he 
himself  prepared  for  the  testator,  and  under  which  he  takes  a  third 
of  the  whole  estate,  though  no  relative  of  the  testator.  X.  objects 
to  the  probate,  on  the  ground  that  the  execution  of  the  will  was  pro- 
cured by  the  fraud  of  A.,  at  a  time  when  the  testator  was  incapacitat- 
ed to  make  a  will.  The  burden  of  proof  here,  as  to  the  validity  of 
the  will,  lies  upon  the  one  offering  it,  and  there  is  no  presumption 
against  its  validitj'  from  the  fact  that  A.  prepared  the  will,  nor  is  the 
burden  of  proof  shifted  by  that  fact.  Baron  Parke  says :  "The  onus 
probandi  lies  in  every  case  upon  the  person  propounding  the  will ; 
and  he  must  satisfy  the  conscience  of  the  court  that  the  instrument  so 
propounded  is  the  last  will  of  a  free  and  capable  testator.  *  *  * 
The  strict  meaning  of  the  tenn  'onus  probandi'  is  that,  if  no  evidence 
is  given  by  the  party  on  whom  the  burden  is  cast,  the  issue  must  be 
found  against  him.  [See  Thayer's  comment  on  this,  in  4  Harv.  Law 
Rev.  53,  54. —  Ed.]  *  *  *  All  that  can  be  truly  said  is  that  if  a 
person,  whether  attorney  or  not  prepares  a  will  with  a  legacy  to  him- 
self, it  is,  at  most,  a  suspicious  circumstance  of  more  or  less  weight, 
according  to  the  facts  of  each  particular  ease."  See  Paske  v.  Ollat. 
2  Phillim.  Ecc.  323;  Ingram  v.  Wyatt.  1  Hagg.  Ecc.  388;  and  Billing- 
hurst  V.  Vickers,  1  Phillim.  Ecc.  187 — to  the  effect  that,  where  the 
party  benefited  prepares  the  will,  "the  presumption  and  onus  pro- 
bandi is  against  the  instrument,  and  the  proof  must  go  not  merely  to 
the  act  of  signing,  but  to  the  knowledge  of  the  contents  of  the  pa- 
per." And  from  this  doctrine  Baron  Parke  dissents.  This  furnishes 
a  good  illustration  of  an  incipient  presumption  or  rule  of  law,  which, 
if  followed  up  by  other  decisions  on  the  same  line,  might  have  become 
a  full-fledged  presumption. 


78  PKESUMPTIONS.  (Ch.  5 

CHAPTER  V. 

PRESUMPTIONS. 

36.  In  General. 

37.  Presumptions  as  Inferences. 
38-39.     Presumptions  as  Rules  of  Law. 

40.  Rules  of  Equivalents. 

41-42.  Prima  Facie  Rules  or  Presumptions^Death. 

43.  Ownership  of  Personal  Property. 

44.  Legitimacy. 

4.5.  Wife  Committing  Crime  in  Presence  of  Husband. 

46.  Capacity  of  Infants  to  Commit  Crime. 

47.  Conversion. 

48.  Receipt  of  Letter. 

49.  Conclusive  Rules  or  Presumptions. 

50.  Title  to  Land  by  Prescription. 

51.  Legal  Origin  of  Custom. 

52.  Capacity  of  Infants  to  Commit  Crime. 

53.  Spurious  Presumptions. 

54.  Presumption  of  Sanity. 

55.  Presumption  as  to  Contributory  Negligence. 

56.  Presumption  of  Intent. 

57.  Presumption  against  Change. 

58.  Presumption  as  to  Law  of  Another  State. 

59.  Presumption  of  Regularity  and  Legality. 

60.  Presumption  of  Innocence. 

61.  Presumption  of  Survivorship. 

62.  Presumption  of  Knowledge  of  the  Law. 

63.  Conflicting  Presumptions. 

IN  GENERAIi. 

36.    The  ■word  "presmnption,"  in  its  legal  significance,  is  used 
to  describe  either  an  inference  or  a  rule  of  law. 

No  term  has  been  more  frequently  or  more  variously  defined. 
We  read  of  presumptions  of  law,  and  presumptions  of  fact, 
mixed  presumptions,  accumulative,  violent,  mild,  conclusive, 
conflicting,  strong,  and  weak  presumptions,  until  the  whole  sub- 
ject seems  an  entanglement  of  definition  and  explanation,  which 
leaves  the  mind  in  a  hopeless  state  of  bewilderment.^     There 

1  For  a  recent  case  in  which  the  word  is  singularly  misapplied, 


§  36)  IN   GENERAL.  79 

are  a  lot  of  things  bearing  certain  analogies  and  relations  to  one 
another,  to  describe  which  the  word  "presumption"  has  been 
seized  upon,  without  reflection  as  to  its  meaning,  and  really, 
perhaps,  for  lack  of  a  better  term. 

Inference. 

Where  the  word  is  used  synonymously  with  "inference,"  it 
deserves  no  especial  consideration,  except  to  guard  against  any 
misconception  which  may  arise  from  the  use  of  the  word  in  so 
many  other  senses.^ 

Rule  of  Lazv. 

Where  the  word  does  not  mean  inference,  it  is  used  to  de- 
scribe some  "rule  of  law."  This  is  the  shortest  way  of  saying 
that  it  may  mean  a  great  many  different  things,  for  the  rules 
of  law  are  many  and  various.  As  a  matter  of  fact,  it  sometimes 
designates  a  rule  of  substantive  law,  and  sometimes  a  rule  of 
procedure,  or  other  branch  of  the  adjective  law.^ 

Origin  of  Rules. 

These  rules,  it  is  likely,  all  had  their  beginnings  in  logical 
inference,  however  independent  of  it  they  may  have  become  in 
their  final  shape.  Now,  the  basis  of  inference  is  experience. 
The  judge  and  the  jury  go  into  court  with  the  experience  of 
ordinary  human  beings,  and,  in  the  process  of  drawing  infer- 
ences, constantly  call  upon  such  experience.  Coupled  with  the 
facts  introduced  as  evidence  at  the  trial,  it  forms  the  basis  of 
the  inferences  necessary  to  arrive  at  a  determination  of  the  facts 

and  confusion  produced  thereby,  see  Reedy  v.  Millizen,  155  111.  636, 
40  N.  E.  1028. 

-  The  "presumption  from  failure  to  call  a  witness"  often  spoken  of, 
is  an  instance  of  this  sort;  what  is  meant  is  inference.  Graves  v. 
U.  S.,  150  U.  S.  118,  14  Sup.  Ct.  40,  37  L.  Ed.  1021;  Cross  v.  Bell,  34 
N.  H.  82,  88.  In  Rice  v.  Com.,  102  Pa.  408,  the  term  "inference"  is 
very  properly  used  instead  of  "presumption."  In  State  v.  Mecum, 
95  Iowa,  433,  64  N.  W.  286,  the  term  "presumption"  is  used  indis- 
criminately for  "inference."  See,  also.  Leach  v.  Hall,  95  Iowa,  Oil, 
64  N.  W.VOO.  See  Ulrich  v.  Ulrich,  1.36  N.  Y.  120,  32  N.  E.  606, 
18  L.  R.  A.  37,  for  a  criticism  on  the  misuse  of  the  term  in  a  charge 
to  the  jury. 

3  When  the  word  "presumption"  is  used,  it  will  clear  the  mind  to 
think:  (1)  Is  the  word  used  for  "inference"?  If  not,  (2)  what  rule 
of  law  does  it  refer  to?  One  may  thus  get  rid  of  carrying  in  the 
mind  the  subject  of  presumptions  as  a  separate  branch  of  the  law. 


80  PRESUMPTIONS.  (Cll.  5 

in  issue.  It  happens  that,  in  the  almost  innumerable  cases  that 
are  tried,  certain  facts  or  groups  of  facts  have  been  repeatedly 
presented  to  courts  as  foundations  for  inferences ;  and  the  in- 
ferences being  reasonable  ones,  judged  by  the  experience  of  the 
court  and  jury,  have  been  repeatedly  drawn  until  a  rule  has 
crystallized.  It  is  not  difficult  to  see  why  these  rules  develo]>ed 
so  early,  and  were  so  readily  adopted  by  the  courts.  Judges 
have  always  been  suspicious  of  juries,  and  have  seized  every 
opportunity  to  establish  rules  for  their  guidance,  and  to  con- 
trol their  conclusions  from  the  evidence  introduced.  The  mind 
of  the  judge  was  supposedly  nothing  if  not  logical,  while  the 
untrained  minds  of  the  jury  were  open  to  the  influences  of 
prejudice,  sympathy,  and  a  thousand  other  things.  Logical  in- 
ference was  therefore  made  the  basis  of  a  vast  number  of  such 
rules  which  the  judges  established,  and  which  they  called  "pre- 
sumptions,"— rules  relating  to  the  manner  of  proving  cises, 
and  in  this  sense  having  to  do  with  the  law  of  evidence ;  fixing, 
for  example,  when  sufficient  evidence  was  introduced,  or  when 
a  party  must  introduce  further  evidence  if  he  would  win  his 


case.* 


PRESUMPTIONS  AS  INFERENCES. 

37.  Tliere  are  no  special  rules  •wliicli  govern  the  subject  of 
logical  inferences,  and  presumptions  ivliich  are  merely 
inferences  relate  to  all  classes  of  things  and  cases. 

Inasmuch  as  the  term  "presumption"  is  used  to  describe  a 
rule  of  law,  it  is  rather  unfortunate  that  it  has  been  so  gener- 
ally used  by  the  courts  as  a  substitute  for  the  word  "inferen-^e." 
It  is  not  necessary,  however,  to  quarrel  with  the  use  of  the 

4  As  to  the  effect  of  a  presumption,  Prof.  Thayer  says:   "They  have 
the  same  effect  (and  no  other)  which  they  have  in  all  the  othe^r  ret; 
of  legal  reasoning.    Their  effect  results,  necessarily,  from  their  ch-'i-. 
acteristic  quality.     This  quality  imputes  to  certain  facts,  or  Kro.'))- 
of  facts,  a  certain  prima  facie  significance  or  operation.     In  ♦"'> 
duct,  then,   of  an  argument  or  of  evidence,   they  throw  up-^n   hi'" 
against   whom    they   operate    the   duty   of   meeting   this    in:pr.;.tii 
Should  nothing  further  be  adduced,  they  settle  the  question  liivci.-ui 
in  thorn  in  a  certain  way.     He.  therefore,  who  would  not  ha^e  it  t-c 
tied  so,  must  show  cause."     Thayer,  Cas.  Ev.  (,2d  h.d.)  p.  -il. 


§  37)  PRESUMPTIONS   AS   INFERENCES.  81 

word  in  the  latter  sense,  if  the  fact  of  its  double  meaning  be 
kept  constantly  in  mind  when  the  subject  is  under  discussion. 
It  will  be  at  once  recognized  that  in  the  following  cases,  which 
are  illustrations  of  the  innumerable  cases  of  this  character,  the 
word  was  synonymous  with  inference,  viz. :  Where,  in  an  ac- 
tion for  death  caused  by  an  explosion  of  molten  metal,  the  court 
say  they  cannot  "presume  that  there  was  molten  metal  under 
the  slag  in  a  kettle,  and  that  the  slag  had  formed  a  crust  which 
held  the  metal  underneath,"  etc.^  Where  it  is  said,  in  an  ac- 
tion for  libel  for  injuries  caused  to  a  stevedore :  "The  plain- 
tiff is  not  bound  to  prove  more  than  enough  to  raise  a  fair  pre- 
sumption of  negligence  on  the  part  of  the  defendant  and  of 
resulting  injury  to  himself.  Having  done  this,  he  is  entitled 
to  recover,  unless  the  defendant  produces  evidence  sufficient  to 
rebut  this  presumption.  Though  it  is  not  every  accident  that 
will  warrant  an  inference  of  negligence,  yet,"  etc.«  Where  the 
court,  in  discussing  the  facts  of  a  negligence  case,  say:  "If 
the  jury  were  to  presume  that  the  engineer  saw  Tull  when  he 
blew  the  whistle,  they  would  have  to  further  presume  that  he 
could  have  stopped  the  train  in  time  to  have  avoided  striking 
him.  This  would  be  building  one  presumption  on  another, 
which  is  not  permissible."  ' 

The  cases  which  are  so  often  cited  as  illustrating  the  propo- 
sition that  there  is  a  presumption  against  the  party  who  sup- 
presses or  destroys  evidence,  or  fails  to  call  a  witness  within 
his  control,  are  all  cases  where  what  is  talked  of  is  inference.^ 

B  Bycyznski  v.  Illinois  Steel  Co.,  115  III.  App.  326. 

6  The  Joseph  B.  Thomas  (D.  C.)  81  Fed.  578. 

7  Tull  V.  St.  L.  S.  W.  Ry.  Co.  (Tex.  Civ.  App.)  87  S.  W.  910. 

8  Carpenter  v.  Penn.  Ry.  Co.,  13  App.  Div.  328,  43  N.  T.  Supp.  203. 
Where  the  witness  is  equally  available  to  either  party,  no  inference 
can  be  claimed  in  favor  of  the  one  party  against  the  other  by  reason 
of  failure  to  call  him.    Daggett  v.  Champlain  Mfg.  Co.,  72  Vt.  1081, 

47  A.  1081. 

In  the  case  of  Harriman  v.  Reading  &  Lowell  Street  Railway  Co., 
173  Mass.  28,  53  N.  E.  156,  the  court  adhere  to  the  use  of  the  word 
"inference"  for  this  sort  of  thing.  See,  also,  Sullivan  v.  Sullivan, 
188  Mass.  380,  74  N.  E.  608. 

In  one  case  it  has  been  said  that  the  presumption  from  fail- 
ure to  call  an  important  witness  is  a  conclusive  presumption.  Garber 
V.  Blatchley,  51  W.  Va.  147,  41  S.  E.  222.  But  this  is  carrying  the 
doctrine  to  an  extreme  not  warranted  by  the  authorities. 

m;'kelv.ev.(2d  ED.)— 6 


82  PRESUMPTIONS.  (Ch.  5 

That  there  is  no  presumption  in  the  sense  of  a  rule  of  law 
has  at  times  been  clearly  recognized.* 


PRESUMPTIONS  AS  BUIiES  OF  LAW. 

38.  The    rules    of    laxr    called    "presumptions"    comprise    two 

classes: 
^a)    Those  which  are  indirectly  connected  iirith  the  law  of 

evidence,  through  having  to  do  vrith.  its  effect,  and  to 

which  the  term  "presumption"  properly  belongs, 
(b)   Those  xirhich  have  nothing  to  do  -with  evidence,  and  ivhich 

may  be   designated   as    spurious   presumptions. 

39.  The  first  class,  presumptions  proper,  while  indirectly  con- 

nected w^ith  the  law^  of  evidence,  are  not  a  part  of  it. 
They  have  to  do  only  with  its  eflFect  and  not  with  its 
admissibility.  They  determine  the  sufficiency  of  evi- 
dence either; 

(a)  To  shift  the  burden  of  proceeding,  or 

(b)  To  establish  an  absolute  case. 

Process  of  Development. 

Rules  of  law  of  this  sort  were  undoubtedly  developments. 
They  were  not  always  rules.  The  first  stage  was  that  of  a  mere 
inference,  permissible  to  judge  or  jury  ;  the  second  was  a  mere 
disposition  on  the  part  of  the  judge  to  advise  the  jury  as  to 
the  desirability  of  such  an  inference;  the  third,  an  instruction 
that  such  an  inference  ought  to  be  drawn;  and  the  fourth,  a 
rule  that  the  inference  was  a  necessary  one,  which  the  jury 
were  bound  to  draw.^"    Take  the  case  of  the  seven  years'  ab- 

9  Kirkpatrick  v.  Allemania  Fire  Ins.  Co.,  102  App.  Dlv.  327,  329, 
92  N.  Y.  Supp.  466.  Here  the  court  say:  "While  no  presumption 
arises  from  the  failure  to  call  a  witness,  I  tmderstand  that  a  jury 
may  draw  such  inferences  as  they  think  warranted  by  the  evidence 
from  the  failure  of  either  party  to  call  any  witness  who  might  rea- 
sonably be  expected  to  shed  light  on  the  transaction." 

10  The  same  result,  only  accomplished  by  the  quicker  method  of 
legislative  enactment,  is  found  in  the  statute  of  2  Jac.  I.  (1604)  c. 
8,  par.  2,  referred  to  in  Lord  Morely's  Case  (1666)  J.  Kelyng,  53, 
which  was  to  the  effect  that  one  who  stabs  another  "that  hath 
not  then  any  weapon  drawn,  or  that  hath  not  then  first  stricken  the 
party  which  shall  first  stab  or  thrust,  *  *  *  although  it  cannot  be 
proved  that  the  same  was  done  of  malice  aforethought,  yet  the  party 
so  offending    *    *    *    simll    *     *    *    suffer  death  as  in  case  of  will- 


§  40)  PRESUMPTIONS   AS   RULES   OF   LAW.  83 

sence  rule.  The  fact  that  a  person  is  not  heard  from  for  a 
space  of  seven  years  by  those  who  would  be  likely  to  hear  from 
him  if  alive  is  a  fact  from  which  the  inference  may  be  reason- 
ably drawn  that  he  is  dead.  An  absence  of  six  years  under  the 
same  circumstances  would  not  be  quite  so  strong,  but  an  ab- 
sence of  eight  years  would  be  stronger.  The  space  of  seven 
years,  however,  became  fixed  in  the  law  as  the  least  period  from 
which  death  might  be  inferred.  Having  once  fixed  the  period 
from  which  the  inference  was  permissible,  the  judges  were  not 
long  in  instructing  the  jury  that  the  inference  ought  to  be 
drawn,  and  finally  taking  it  out  of  the  jury's  hands  entirely, 
and  establishing  the  rule  that  it  must  be  drawn. 


SAME— RULES  OF  EQUIVALENTS. 

40.   In  their  final  shape,   these  mles  become  rales  of   equiv- 
alents, either  prima  facie  or  absolute. 

Prima  Facie  Equivalents  or  Presumptions. 

Taking  the  seven  years'  absence  rule  above  referred  to  as  an 
example,  it  is  to  be  observed  that  when  a  rule  of  this  sort  takes 
its  final  shape,  strictly  speaking,  it  no  longer  has  anything  to  do 
with  logical  inference ;  it  matters  not  whether  such  inference 
exists.  The  rule  has  become  one  of  equivalents ;  i.  e.,  that  sev- 
en years'  absence,  under  the  circumstances  mentioned,  is  equiv- 
alent to  death.  In  cases  of  this  nature,  however,  it  is  only 
a  rule  of  prima  facie  equivalents,  since  evidence  may  be  intro- 
duced to  show  that  the  inference  which  the  rule  requires  is 
not  in  accordance  with  the  facts.  It  fixes  the  point  at  which 
a  prima  facie  case  is  established,  and  hence  directly  affects  the 
burden  of  proceeding. 

The  identity  of  a  rule  of  this  sort  with  what  is  known  as  a 
"prima  facie  case"  will  be  noticed.  A  prima  facie  case  is  es- 
tablished when  the  party  upon  whom  the  burden  of  proof  rests 

ful  murder."  In  Lord  Morely's  Case  it  was  resolved  by  "all  the 
judges  of  England"  that  this  statute  was  only  a  "declaration  of  the 
common  law."  Here  was  an  inference  crystallized  into  a  rule, — a 
rule  which,  if  established  by  the  courts,  would  have  vmdoubtedly  been 
named  a  presumption. 


84  PRESUMPTIONS.  (Ch.  5 

has  introduced  enough  evidence  to  prove  the  facts  alleged,  pro- 
vided no  evidence  is  introduced  on  the  other  side.  It  may,  in 
some  cases,  be  difficult  to  tell  just  when  this  point  is  reached. 
The  effect  of  the  rule  of  law  as  to  equivalents  of  facts  is  to  fix 
the  point,  and  thus  help  the  judge  in  the  conduct  of  the  trial, 
and  the  parties  in  the  conduct  of  the  evidence.  It  fixes  upon 
certain  facts  introduced  as  evidence  the  effect  of  being  sufficient 
to  shift  the  burden  of  proceeding  to  the  other  party.^^ 

Conclusive  Equivalents  or  Presumptions. 

The  conclusive  presumption  was  the  result  of  the  further  de- 
velopment of  the  same  rule  of  equivalents.  In  the  process  of 
development,  the  judges  in  some  cases  went  one  step  further, 
and  said  that  fact  No.  1  should  be  equivalent  to  fact  No.  2,  at 
all  events,  and  no  evidence  would  be  permitted  to  show  that 
it  was  not.  This  was  going  beyond  the  prima  facie  stage,  and 
departing  still  further  from  the  starting  point  of  logical  infer- 
ence. It  was,  in  fact,  establishing  a  rule  of  positive  law — a 
thing  which  the  courts  have  always  disclaimed,  and  which  they 
therefore  accomplished  under  the  guise  of  the  much-used  and 
much-abused  term  "presumption."  ^^  This  is  what  is  known 
as  a  "conclusive"  or  "inevitable"  presumption. 

11  State  V.  Pike,  49  N.  H.  390,  442-444,  6  Am.  Rep.  533.  In  Graves 
V.  Colwell,  90  111.  612,  the  effect  mentioned  in  the  text  is  held  to  fol- 
low from  the  somewhat  peculiar  rule  of  law  that  where  a  deed  is 
made  to  one  of  two  parties  of  the  same  name,  and  they  are  father 
and  son,  the  father  will  be  taken  to  be  intended,  unless  evidence  is 
introduced  to  the  contrary. 

12  Prof.  Thayer,  in  an  article  in  3  Harv.  Law  Rev.  14S-151,  very 
aptly  likens  this  to  the  modern  theory  of  estoppel.  He  says:  "In 
such  cases  the  judges  accomplish,  through  the  phraseology  and  under 
the  garb  of  evidence,  the  same  results  which  they  have  long  reached, 
and  are  now  constantly  reaching,  by  the  directer  means  of  estoppel. 
The  modern  extension  of  this  doctrine  broadens  the  law  by  a  direct 
application  of  the  maxims  of  justice — a  simple  method,  and  worthy 
of  any  judicial  tribunal  which  rises  to  the  level  of  its  great  office, 
and  yet  one  not  quite  in  harmony  with  the  general  attitude  of  our 
common-law  courts  and  their  humble  phraseology  in  professing  to 
abdicate  the  office  of  legislation.  But  inasmuch  as  every  body  of  men 
that  undertakes  to  administer  the  law  must,  in  fitting  it  to  the  ever- 
changing  combinations  of  fact  that  come  before  them,  constantly  legis- 
late, incidentally  and  in  a  subsidiary  way,  it  is  best  that  this  should 
be  openly  done,  as  it  really  is  in  the  cautious  extensions  of  the  prin- 


§  40)  PKESUMPTIONS  AS   RULES   OF   LAW.  85 

Illustration. 

The  best  illustration  of  it  is,  perhaps,  found  in  the  rule  that 
from  20  years  of  adverse  possession  a  lost  grant  will  be  con- 
clusively presumed.  "The  judges  at  first  laid  down  that,  if  un- 
answered, 20  years  of  adverse  possession  justified  the  infer- 
ence ;  then  that  it  'required  the  inference,' — i.  e.,  it  was  the 
jury's  duty  to  do  what  they  themselves  would  do  in  settling 
the  same  question,  namely,  to  find  the  fact  of  the  lost  grant; 
and,  at  last,  this  conclusion  was  laid  down  as  a  rule  of  the  law 
of  property,  to  be  applied  absolutely,"  ^^  In  this  shape,  the 
rule  of  law  has  the  effect  of  fixing  upon  certain  facts,  intro- 
duced as  evidence,  the  quality  of  being  sufficient  to  establish 
the  case  absolutely. 

The  frequent  coincidence  of  two  facts,  as  evidentiary  and 
main  facts,  first  suggests  rules  of  this  sort.  Such  a  rule  would 
not  be  likely  to  develop  from  a  mere  permissible  inference,  un- 
less the  coincidence  of  the  evidentiary  and  main  facts  was  a 
common  occurrence;  and  it  is  consequently  only  with  respect 
to  certain  facts  which  are  often  in  issue,  and  for  the  proof  of 
which  the  same  secondary  facts  have  often  been  introduced, 
that  a  rule  becomes  established.  Thus,  if  it  had  never  been 
sought  to  prove  death  by  absence  for  a  long  period  of  time  but 
once,  no  rule  would  ever  have  existed  such  as  the  "seven-years" 
rule  referred  to.^* 

ciple  of  estoppel.  The  same  thing  has  taken  place  by  presumptions, 
only  it  was  more  disguised.  By  merely  handling  'evidence,'  and  fixing 
upon  it  a  given  quality,  the  judge's  denial  of  any  right  to  make  the 
law  has  seemed  to  moult  no  feather." 

13  Thayer,  3  Harv.  Law  Rev.  p.  149.  In  Dalton  v.  Angus,  6  App. 
Cas.  740,  Lord  Blackbui'n  traces  the  development  of  the  rule  (pages 
811-814).  He  says :  "The  modern  doctrine  that  a  jury  ought  to  be 
directed  that,  if  they  believed  that  there  has  been  what  was  equiva- 
lent to  adverse  possession  as  a  right  for  more  than  twenty  years, 
they  ought  to  presume  that  it  originated  lawfully,  that  is,  in  most 
cases,  by  a  grant,  must  certainly  have  been  introduced  after  the  pass- 
ing of  the  statute  of  limitations,  21  Jac.  I.  c.  16  (A.  D.  1623);  and  as 
the  earliest  reported  decision  is  that  of  Lewis  v.  Price,  in  1761,  re- 
ferred to  in  Sergeant  Williams'  note  to  Yard  v.  Ford,  2  Saund.  (Ed. 
1871)  504,  the  doctrine  is  probably  not  much  more  than  a  century 
old."    Smith  v.  Putnam,  62  N.  H.  3G9,  ace. 

14  It  is  this  sort  of  a  rule  to  which  Stephen  applies  the  term  "pre- 
sumption" (Steph.  Dig.  Ev.  note  1,  Append.) :     "I  use  the  word  'presump- 


86  PRESUMPTIONS.  (Ch.  5 

Rules  of  Law  Imputing  a  Prima  Facie  Effect  to  Facts  in  Par- 
ticular Cases. 

The  general  nature  and  effect  of  these  rules  having  been 
explained,  it  remains  to  state  a  few  of  the  more  important  ones. 
There  are  many  of  them,  and  the  number  is  undoubtedly  in- 
creasing from  year  to  year,  as  the  facts  with  which  courts  have 
to  deal  increase  in  volume  and  variety.  The  seven  years'  ab- 
sence rule,  which  has  already  been  explained,  is,  perhaps,  the 
best  example  of  the  class  of  rules  which  operate  to  make  a 
prima  facie  case,  and  thereby  shift  the  burden  of  proceeding. 
It  may  be  expressed  as  follows : 

PRIMA  FACIE  RULES  OR  PRESUMPTIONS— DEATH. 

41.  Absence  for  seven  years,  •with,  a  total  lack  of  communica- 
tion -witli  those  wrho  ivould  naturally  have  heard  from 
him  if  he  was  alive,  is  sufficient  evidence  of  the  death 
of  the  absent  party. is 

Lord  Ellenborough  expresses  the  rule  as  follows :  "The  pre- 
sumption of  the  duration  of  life  with  respect  to  persons  of 
whom  no  account  can  be  given  ends  at  the  expiration  of  seven 
years  from  the  time  when  they  were  last  known  to  be  living."  ^® 
This  is  not  a  satisfactory  statement  of  the  rule,  as  it  involves 
the  use  of  the  word  "presumption"  in  the  sense  of  "inference." 
There  is  no  presumption  of  the  duration  of  human  life ;  there 
may,  however,  be  a  permissible  inference.    There  is,  however, 

tion'  in  the  sense  of  a  presumption  of  law  capable  of  being  rebutted. 
A  presumption  of  fact  is  simply  an  argument.  A  conclusive  presump- 
tion I  describe  as  conclusive  proof.  Hence  the  few  presumptions  of 
law  which  I  have  thought  it  necessary  to  notice  are  the  only  ones  I 
have  to  deal  with."  At  page  4,  he  defines  "presumption"  as  follows: 
"A  presumption  means  a  rule  of  law  that  courts  and  judges  shall 
draw  a  particular  inference  from  a  particular  fact,  or  from  particu- 
lar evidence,  unless  and  until  the  truth  of  such  inference  is  dis- 
proved." 

15  Reedy  v.  Millizen,  155  111.  636,  40  N.  E.  1028;  Wentworth  v. 
Wentworth,  71  Me.  72;  Osborn  v.  Allen,  26  N.  J.  Law,  388,  p.  390; 
WinslTip  V.  Conner,  42  N.  TI.  341.  For  a  case  where  the  matter  is 
treated  purely  as  one  of  logical  inference  from  facts,  see  Mardea  v. 
Boston.  155  Mass.  359,  29  N.  E.  588. 

16  George  v.  Jesson  (1805)  6  East,  80,  85. 


§  41)  PRIMA    FACIE    RULES   OR   PRESUMPTIONS.  87 

a  presumption  (or  rule)  of  death  under  the  circumstances  men- 
tioned, as  has  been  explained. 

As  the  presumption  or  rule  is  only  a  prima  facie  one,  any 
evidence  logically  relevant  to  show  the  person  was  living  is 
allowable.  That  the  person  has  been  heard  from  by  any  one, 
whether  it  be  one  who  would  naturally  hear  from  him  or  not, 
is  admissible. ^'^ 

The  presumption  cannot  be  used  as  the  basis  for  estab- 
lishing a  good  title  for  the  purpose  of  compelling  specific  per- 
formance ;  nor,  where  a  title  depends  on  the  death  of  a  party, 
will  absence  of  such  party  for  seven  years  in  any  event  be 
sufficient  proof  of  death.  This  phase  of  the  presumption  was 
illustrated  in  an  interesting  manner  in  the  case  of  Youngs  v. 
Heffner.^®  A.  brought  action  against  X.  to  have  certain  land 
partitioned,  claiming  a  two-sevenths  interest  therein.  X. 
claimed  title  acquired  by  purchase.  It  seemed  that  A.,  with 
several  brothers  and  sisters,  inherited  the  land.  A.  disap- 
peared, and  was  unheard  of  for  more  than  30  years.  He  was 
supposed  to  be  dead.  Acting  upon  that  assumption,  his  broth- 
ers and  sisters,  as  his  heirs,  applied  to  have  the  land  parti- 
tioned, and  under  order  of  the  court  it  was  sold  in  the  par- 
tition suit  to  X.  A.  then  reappeared  and  brought  suit,  claim- 
ing that  he  was'  the  lawful  owner  of  his  original  interest.  It 
was  held  that  the  presumption  did  not  help  the  title  in  the 
least,  as  it  was  wholly  rebutted  by  the  reappearance  of  A.^® 

The  absence  m.ust  be  absence  from  his  last  place  of  residence 
"which  was  known  to  his  family  or  his  relatives  who  would 
be  likely  to  know  whether  he  was  living,  and  from  whom  a 
party  in  the  search  of  the  truth  would  be  likely  to  make  in- 
quiries. The  mere  fact,  therefore,  that  the  party  has  absented 
himself  from  the  place  of  his  birth,  or  from  his  original  domi- 
cile, for  more  than  seven  years,  does  not  raise  a  presumption 
that  he  is  dead."  "^ 

iTFlynn  v.  Coffee,  12  Allen  (Mass.)  133;  Youngs  v.  Heffner,  36 
Ohio  St.  232. 

18  36  Ohio  St.  232.    - 

19  See,  also,  Walton  v.  Meeks,  120  N.  Y.  79,  23  N.  E.  1115,  where 
it  was  sought  to  make  a  similar  use  of  the  presumption. 

2  0  McCartee  v.  Camel,  1  Barb.  Ch.  (N.  Y.)  455,  per  Chancellor  Wal- 
worth, at  page  463. 


88  PKESUMPTIONS.  (Ch.  5 

42.  There  is  no  rule  as  to  the  particular  time  within  the  per- 
iod at  which  death  will  be  assumed  to  have  taken 
place. 21 

The  meaning  of  this  is  that  one  who  asserts  a  right  based 
upon  the  death  of  a  person  at  any  particular  time,  whether  at 

21  A,  brings  an  action  in  ejectment  againSt  X.  A.  Claims  the  prop- 
erty as  grantee  of  a  reversion  after  death  of  M.  The  action  was  com- 
menced January  18,  1834.  X.  claimed  by  20  years'  adverse  posses- 
sion. M.  left  his  home  in  December,  1806,  and  the  last  heard  from 
him  was  a  letter  which  was  received  in  May,  1807.  A.'s  interest 
vested  on  the  death  of  M.  How  does  the  presumption  of  death  in  the 
case  of  one  not  heard  of  for  7  years  affect  the  case  (1)  as  to  whether 
the  action  was  begun  within  the  20  years'  limitation ;  (2)  as  to  wheth- 
er X.  had  held  20  years'  adverse  possession?  Lord  Denmnn  says: 
"It  is  true,  the  law  presumes  that  a  person  shown  to  be  alive  at  a 
given  time  remains  alive  until  the  contrary  be  shown,  for  which  rea- 
son the  onus  of  showing  the  death  of  M.  lay  in  this  case  on  the  plain- 
tiff. He  has  shown  the  death  by  proving  the  absence  of  M.,  and  his 
not  having  been  heard  from  for  seven  years;  whence  arises,  at  the 
end  of  those  seven  years,  another  presumption  of  law,  namely,  that 
he  is  not  then  alive.  But  the  onus  is  also  cast  on  the  lessor  of  the 
plaintiff  of  showing  that  he  has  commenced  his  action  within  twenty 
years  after  his  right  of  entry  accrued;  that  is,  after  the  actual  death 
of  M.  Now,  when  nothing  is  heard  of  a  person  for  seven  years,  it  is 
obviously  a  matter  of  complete  uncertainty  at  what  point  of  time  in 
those  seven  years  he  died.  Of  all  the  points  of  time,  the  last  day  is 
the  most  improbable  and  most  inconsistent  with  the  ground  of  pre- 
suming the  fact  of  death.  That  presumption  arises  from  the  great 
lapse  of  time  since  the  party  has  been  heard  of,  because  it  is  consid- 
ered extraordinary,  if  he  was  alive,  that  he  should  not  be  heard  of. 

*  *  *  If  you  assume  that  he  was  alive  on  the  last  day  but  one  of 
the  seven  years,  then  there  is  nothing  extraordinary  in  his  not  hav- 
ing been  heard  of  on  the  last  day;  and  the  previous  extraordinary 
lapse  of  time,  during  which  he  was  not  heard  of,  has  become  im- 
material, by  reason  of  the  assumption  that  he  was  living  so  lately. 

*  *  *  We  adopt  the  doctrine  of  the  court  of  king's  bench  that  the 
presvunption  of  law  relates  only  to  the  fact  of  death,  and  that  the 
time  of  death,  whenever  it  is  material,  must  be  a  subject  of  distinct 
proof."  Nepean  v.  Doe  (1837)  2  Mees.  &  W.  894.  See,  also,  to  same 
effect.  Doe  v.  Nepean,  5  Barn.  &  Adol.  86;  Hopewell  v.  De  Pinna,  2 
Camp.  113.  The  following  American  cases  support  the  same  view: 
Davie  v.  Briggs,  97  U.  S.  628,  24  L.  Ed.  1086;  State  v.  Moore,  11  Ired. 
(N.  C.)  160,  53  Am.  Dec.  401;  Whiteley  v.  Assurance  Soc,  72  Wis.  170, 
39  N.  W.  309;  Tisdale  v.  Insurance  Co.,  26  Iowa,  170,  96  Am.  Dec. 
136;  McCartee  v.  Camel,  1  Barb.  Ch.  (N.  Y.)  4.">.5;  Howard  v.  State, 
75  Ala.  27;    Hancock  v.  Insurance  Co.,  62  Mo.  26. 


§  42)  PRIMA    FACIE    RULES   OR   PRESUMPTIONS.  89 

the  beginning,  at  any  time  during,  or  at  the  expiration  of  the 
seven  years'  period,  must  prove  by  a  preponderance  of  evidence 
that  death  took  place  at  such  time.  The  law  will  not  help  a 
party  by  presuming  anything  as  to  the  time  of  death. 

There  is  a  line  of  decisions  which  lay  down  the  doctrine 
that  the  presumption  relates  not  only  to  the  fact  of  death,  but 
also  to  the  time,  and  fixes  that  time  as  the  expiration  of  the 
seven  years.  They  base  this  doctrine  upon  the  supposed  pre- 
sumption of  the  continuance  of  human  life,  saying  that  that 
presumption  suffices  to  establish  life  until  the  conflicting  pre- 
sumption of  absence  for  seven  years  begins  to  operate  and 
overcomes  it.^^  All  this  is  extremely  confusing  and  unsat- 
isfactory. 

There  is  no  rule  which  requires  the  inference  to  be  drawn 
that  a  person,  shown  to  be  alive  at  a  particular  time,  continues 
to  live.  It  may  be  true  that  the  fact  that  one  is  proved  to  be 
living  at  one  time  will  justify  the  inference  that  he  is  alive  a 
month  or  a  year  later,  but  this  will  depend  largely  upon  the 
circumstances  which  are  proved.  If  life  is  shown,  but  in  such 
a  state  of  health  that  in  ordinary  course  he  could  live  but  a 
few  weeks,  there  would  be  no  basis  whatever  for  the  inference 
of  continuance  of  life.     The  better  rule  would  seem  to  be  that 

22  The  case  of  Reedy  v.  Millizen,  15.5  111.  636,  40  N.  E.  1028,  proceeds 
upon  the  theory  that  the  law  will  presume  that  life  continues  during 
the  whole  of  the  seven  years.  lu  the  opinion  of  the  court  it  is  said 
(page  638  of  155  111.,  page  1028  of  40  N.  E.),  "While,  therefore,  it 
is  true  that  there  is  no  presumption  that  death  occurred  at  any  par- 
ticular time  within  the  seven  years,  it  is  also  true  that,  in  the  absence 
of  contravening  facts  or  controlling  presumptions,  it  will  be  presumed 
that  life  continued  during  the  entire  period."  What  the  evidence  dis- 
closed was  simply  that  the  party  relying  upon  death  prior  to  the 
expiration  of  the  seven  years  had  failed  to  establish  that  fact,  and, 
on  the  contrary,  what  evidence  there  was  tended  rather  to  justify 
the  inference  that  the  party  was  alive  after  the  time  at  which  that 
death  was  sought  to  be  proved.  Under  these  circumstances,  the  court 
might  well  have  reached  the  result  it  did  without  resort  to  any  pre- 
sumption of  continuance  of  life.  See,  also,  Whiting  v.  Nicholl,  46 
111.  230,  92  Am.  Dec.  243;  Clarke's  Ex'rs  v.  Canfleld,  15  N.  J.  Eq.  119; 
Eagle's  Case,  3  Abb.  Prac.  (N.  Y.)  218 ;  Burr  v.  Sim,  4  Whart.  (Pa.) 
1.50,  33  Am.  Dec.  50.  For  a  full  discussion  of  this  doctrine,  justi- 
fying it  and  criticising  the  English  rule,  see  Mr.  Justice  Field's 
opinion  in  Montgomeiy  v.  Bevans,  1  Sawy.  (U.  S.)  653,  662-668,  Fed. 
Cas.  No.  9,735. 


90  PRESUMPTIONS.  (Ch.  5 

there  is  no  presumption  or  rule  of  law  which  affects  the  ques- 
tion ;  but  that  each  case  must  stand  upon  its  own  evidence,  as 
a  question  of  logical  inference. 


SAME— OWNERSHIP  OF  PERSONAL  PROPERTY. 

43.  Possession  of  personal  property  ivlien  tliere  is  no  evidence 
explaining  its  nature  is  prima  face  proof  of  oxmer- 
ship.  23 

Possession  is,  undoubtedly,  sufficient  to  justify  an  inference 
of  ownership;  and,  if  the  drawing  of  the  inference  was  en- 
tirely unfettered  by  any  rule  as  to  its  necessity,  we  would  have 
merely  one  of  the  thousands  of  instances  of  facts  justifying  in- 
ferences. But  the  courts  conceived  it  to  be  proper  to  lay 
down  a  rule  in  respect  to  the  matter,  and,  doing  it  in  the  lan- 
guage of  the  law  of  evidence,  called  it  a  "presumption."  It 
is  one  of  the  rules  of  the  law  relating  to  personal  property, 
and  though  born  in  the  courts  instead  of  the  legislature,  and, 
brought  up  in  the  lap  of  evidence  instead  of  its  rightful  parent, 
it  cannot  hide  its  real  character. 

It  has  been  held  that,  in  the  case  of  growing  crops  and  farm 
products,  possession  is  not  prima  facie  proof  of  ownership, 
if  it  is  consistent  with  the  ownership  being  in  another,  even 
though  no  evidence  be  given  as  to  the  ownership,-* 


SAME— LEGITIMACY. 

44.  Evidence  titat  a  child  is  bom  dnring  xpedlock  is  snfificient  to 
establish  its  legitimacy,  and  shift  the  burden  of  pro- 
ceeding to  the  party  seeking  to  establish  the  contrary. 

2  3  Possession  of  a  negotiable  instrument,  indorserl  in  blank,  is 
prima  facie  evidence  of  title.  Collins  v.  Gilbert,  94  U.  S.  Tn,"'),  24  L. 
Ed.  170;  James  v.  Chalmers,  6  N.  Y.  200;  Rnbey  v.  Culhertson,  35 
Iowa,  264;  Hovey  v.  Sebring,  24  Mich.  232,  9  Am.  Rep.  122.  Posses- 
sion of  vessel:  Stacy  v.  Graham,  3  Dner  (N.  Y.)  444,  4.'i2.  Possession 
of  live  stock:  Viniug  v.  Baker,  53  Me.  544;  Goodwin  v.  Garr,  S  Cal. 
015.  That  possession  of  real  estate,  in  the  absence  of  other  evidence, 
is  sufficient  prima  facie  evidence  of  title:  Pcn-ry  v.  Weeks,  137  Mass. 
584;    Ward's  Heirs  v.  :\r(Intosh.  12  Ohio  St.  231. 

24  Rawley  v.  Brown,  71  N.  Y.  85. 


§  45)  PRIMA    FACIE    RULES   OR   PRESUMPTIONS.  91 

This  rule  was  formerly  stated  as  a  conclusive  presumption, 
— i.  e.,  a  rule  of  law  which  absolutely  and  finally  determined 
the  fact  of  legitimacy,  and  allowed  no  further  question;  ^^  but 
it  is  now  settled  that  it  may  be  rebutted  by  any  evidence  which 
is  competent,  =^®  and  it  therefore  falls  within  the  class  of  prima 
facie-rules. 


SAME— WIFE  COMMITTING  CRIME  IN  PRESENCE   OF 

HUSBAND. 

45.  Evidence  that  a  wife  committed  a  crime,  other  than  trea- 
son or  homicide,  in  the  presence  of  her  husband,  is  suf- 
ficient to  show  that  she  acted  under  his  coercion. 

26  In  the  case  of  Alein  de  Wartone  v.  Simon,  the  Son  of  Gilian 
(1304)  Y.  B.  32  &  33  Edw.  I.  p.  60.  Hengbam,  C.  J.,  cites  an  instance 
where,  though  the  jury  found  that  the  husband  went  over  the  sea,  and 
stayed  three  years,  and  on  his  return  found  a  child  born  one  month, 
and  that,  therefore,  such  child  was  not  his  daughter,  yet,  "neverthe- 
less, because  the  private  affairs  of  a  man  and  his  wife  cannot  be 
known — for  he  may  have  come  into  the  country  by  night  before,  and 
begotten  this  woman  upon  his  wife — it  was  awarded  by  the  justices 
that  she  should  recover." 

2  6  The  presumption  of  legitimacy  is  said  by  Stephen  (article  98)  to 
be  conclusive  unless  nonaccess  is  shown,  or  that  the  circumstances 
of  the  access  were  such  as  to  render  it  highly  improbable  that  sexual 
intercourse  took  place.  Pendrell  v.  Pendrell  (1732)  2  Strange,  925, 
is  said  to  be  the  first  case  in  which  it  was  decided  that  the  presump- 
tion could  be  rebutted  by  other  proof.  In  Cross  v.  Cross  (1832)  3 
Paige,  Ch.  (N.  T.)  139,  it  is  said  (page  140,  23  Am.  Dec.  778):  "The 
ancient  rule  that  the  husband  must  be  presumed  to  be  the  father  if  he 
was  within  the  four  seas  during  any  part  of  the  usual  period  of  gesta- 
tion has  been  long  since  exploded,  and,  as  Justice  Gross  says,  'on  ac- 
count of  its  absolute  nonsense.'  But  the  modern  rule,  which  is  mark- 
ed out  by  its  good  sense,  is  that,  to  bastardize  the  issue  of  a  married 
woman,  it  must  be  shown  beyond  all  reasonable  doubt  that  there  was 
no  such  access  as  could  have  enabled  the  husband  to  have  been  the 
father  of  the  child."  To  the  same  effect  is  Van  Aeniam  v.  Van  Aer- 
nam  (1846)  1  Barb.  Ch.  (N,  Y.)  375;  Phillips  v.  Allen,  2  Allen  (Mass.) 
453;  Egbert  v.  Greenwalt,  44  Mich.  245,  6  N.  W.  654,  33  Am.  Rep. 
260.  In  the  following  cases:  State  v,  Romaine,  58  Iowa,  46,  11  N.  W. 
721;  Wright  v.  Hicks,  12  Ga.  155,  56  Am.  Dec.  451;  Hawes  v.  Draeg- 
er,  23  Ch.  Div.  173 ;  Herring  v.  Goodson,  43  Miss.  392— the  language 
of  the  courts  is  not  so  strong  with  respect  to  requiring  proof  beyond  a 
reasonable  doubt  to  rebut  the  presumption,  but  tends  towards  the 
sufficiency  of  a  preponderance  of  evidence. 


92  PRESUMPTIONS.  (Ch.  5 

The  presumption  that  a  wife  committing  a  crime,  other  than 
treason  or  homicide,  in  the  presence  of  her  husband,  acts  un- 
der his  coercion,  was  a  rule  of  the  criminal  law.  Possibly, 
it  may  have  had  its  origin  in  an  inference  at  one  time  rendered 
permissible  by  the  state  of  the  times  and  the  customs  of  the 
people.  It  long  survived,  however,  the  existence  of  these  con- 
ditions. It  has  been  stated  sometimes  as  a  conclusive  pre- 
sumption,^'' but  the  well-established  modern  doctrine  is  that  it 
may  be  rebutted;^®  and,  if  it  at  any  time  developed  so  far 
from  the  original  starting  point  of  inference  as  to  have  become 
an  absolute  rule,  it  never  acquired  much  stability  in  that  char- 
acter, and  soon  dropped  back  into  a  rule  with  merely  a  prima 
facie  effect. 

An  interesting  phase  of  this  presumption  is  found  in  a  case 
where  the  wife  is  charged  with  the  commission  of  the  crime 
of  perjury  in  giving  testimony  in  behalf  of  her  husband  on 
the  trial  of  a  criminal  charge  against  him.  The  question  is 
whether,  he  being  present  in  the  prisoner's  dock  while  she 
is  testifying,  it  will  be  presumed  that  she  acted  under  his  co- 
ercion. The  Massachusetts  courts  have  expressed  the  opinion 
that  in  such  case  the  rule  that  there  is  a  presumption  of  co- 
ercion does  not  apply.^® 

What  facts  will  constitute  presence  on  the  part  of  the  hus- 
band has  been  held  to  be  a  question  of  fact  for  the  jury,  in  all 
cases  where  the  wife  did  not  act  in  his  direct  presence,  or  un- 
der his  eye.^° 

2  7  1  Greenl.  Ev.  §  28;  thonsh  later  in  his  work  (volume  3,  §  7)  he 
concedes  that  there  is  a  question  as  to  whether  the  better  view  is  not 
that  it  is  a  rebuttable  presumption. 

2s  People  V.  Ryland,  97  N.  Y.  126:  State  v.  Cleaves,  59  Me.  298,  8 
Am.  Rep.  422. 

29  Com.  V.  Moore,  162  Mass.  441,  443,  38  N.  E.  1120. 

3  0  Com.  V.  Daley,  148  Mass.  11,  18  N.  E.  579.  On  the  trial  of  X.,  a 
married  woman,  for  unlawfully  selling  intoxicating  liqours,  it  ap- 
peared that  the  husband  was  in  another  room,  between  which  and 
the  barroom  there  was  a  closed  door.  It  was  held  that  it  could  not  be 
said,  as  a  matter  of  law,  that  being  on  the  premises  was  sufficiont 
"presence,"  but  the  jury  were  to  determine  the  question.  See,  also, 
Seiler  v.  People,  77  N.  Y.  411.  In  a  case  of  this  sort,  it  would  seem  that 
what  the  jury  really  determines  is  whether  there  was  coercion;  that 
is,  whether  there  was  such  a  presence  on  the  part  of  the  husband  as 


§§  46-47)      PRIMA   FACIE   RULES  OR  PRESUMPTIONS.  93 

SAME— CAPACITY  OF  INFANTS  TO  COMMIT  CRIME. 

46.  Evidence  that  an  infant  is  between  tlie  ages  of  seven  and 
fourteen  is  sufficient  to  show,  prima  facie,  that  he  is 
incapable  of  committing  a  crime. 

Prima  facie,  an  infant  between  the  ages  of  seven  and  four- 
teen is  incapable  of  crime.  This  is  a  rule  of  the  criminal  law, 
which  usually  goes  under  the  name  of  a  presumption.  Its  ef- 
fect is  that,  when  it  is  shown  that  the  person  charged  with 
the  commission  of  a  crime  is  under  the  age  of  fourteen,  the 
burden  is  thrown  on  the  prosecution  of  introducing  evidence 
showing  capacity  for  crime.^^  If  it  be  assumed  that  the  com- 
mission of  the  act  charged  has  been  clearly  proved  by  the 
prosecution,  and  a  prima  facie  case  made  out,  the  defendant 
need  only  show  the  fact  that  he  was  under  fourteen  to  throw 
the  burden  of  proceeding  back  onto  the  prosecution.  Or- 
dinarily, capacity  to  commit  crime  is  assumed,  just  as  sanity 
and  many  other  mental  and  physical  conditions  are  assumed, 
without  requiring  special  proof.  Let  infancy  under  fourteen 
be  shown,  and  the  assumption  changes  from  capacity  to  in- 
capacity. 

SAME— CONVERSION. 

47.    Evidence  of  a  demand  and  refusal  is  prima  facie  sufficient 
to  show  a  conversion. 

This  is  a  rule  in  the  law  of  torts,  though  commonly  called  a 
presumption.     Undoubtedly,  it  was  but  an  inference  in  the  be- 

wonld  exercise  a  controlling  influence  over  the  wife's  acts.    The  pre- 
sumption really  has  no  influence  on  the  result. 

31  Rex  V.  Owen.  4  Car.  &  P.  236;  Reg.  v.  Smith,  1  Cox,  Cr.  Cas.  2G0. 
In  the  latter  case,  Erie,  J.,  says:  "Where  a  child  is  under  the  age  of 
seven  years,  the  law  presumes  him  to  be  incapable  of  committing  a 
crime.  After  the  age  of  fourteen  he  is  presiuued  to  be  responsible 
for  his  actions,  as  entirely  as  if  he  was  forty;  but  between  the  ages 
of  seven  and  fourteen  no  presumption  of  law  arises  at  all,  and  that 
which  is  termed  a  malicious  intent — a  guilty  knowledge  that  he  was 
doing  wrong — must  be  proved  by  the  evidence,  and  cannot  be  pre- 
sumed from  the  mere  commission  of  the  act." 


94  PRESUMPTIONS.  (Ch.  5 

ginning,  which  was  permissible  to  the  jury.  Actual  conver- 
sion of  property,  however,  in  many  instances  being  a  difficult 
thing  to  prove,  and  demand  and  refusal  being  in  many  cases 
the  only  evidence  possible,  the  matter  gradually  took  on  the 
shape  of  a  prima  facie  rule ;  and  it  was  laid  down  that  proof 
of  demand  and  refusal  was  equivalent  to  proof  of  conversion, 
unless  rebutted  by  explanatory  evidence. ^^ 


SAME— RECEIPT  OF  LETTER. 

48.  Evidence  of  the  mailing  of  a  letter,  properly  addressed 
and  stamped,  is  prima  facie  sufficient  to  prove  the  re- 
ceipt by  the  addressee  of  such  letter. 

The  principle  above  stated  is  perhaps  well  enough  estab- 
lished at  the  present  time  to  justify  its  being  considered  a 
prima  facie  rule  or  presumption.  If  so,  it  is  an  example  of  a 
comparatively  recent  crystallization  of  a  rule  of  law  from  the 
repeated  use  of  the  same  kind  of  proof  to  establish  a  particular 
fact.  It  is  even  now  sometimes  treated  as  a  matter  of  infer- 
ence only,  to  be  left  to  the  jury,^^  or  as  one  of  the  cases  where 
the  so-called  presumption  of  regularity  applies.^* 

It  seems,  however,  that  in  most  states  the  matter  is  to  be 

3  2  Caunce  v.  Spanton,  7  Man.  &  G.  903. 

3  3  Bloom  V.  Wanner  (Ky.)  77  S.  W.  930. 

84  See  page  112.  In  Henderson  v.  Coke  Co.,  140  U.  S.  25,  11  Sup. 
Ct.  691,  3.5  L.  Ed.  332,  Mr.  Justice  Brewer  says  (page  37  of  140  U.  S., 
and  page  695  of  11  Sup.  Ct) :  "This  is  not  a  conclusive  presumption, 
and  it  does  not  even  create  a  legal  presumption,  that  such  letters 
were  actually  received.  It  is  evidence  tending,  if  credited  by  the 
jury,  to  show  the  receipt  of  such  letters — 'a  fact,'  says  Agnew,  J. 
(Tanner  v.  Hughes,  53  Pa.  290),  'in  connection  with  other  circmu- 
stances,  to  be  referred  to  the  jury,  under  appropriate  instructions, 
as  its  value  will  depend  upon  all  the  circumstances  of  the  particular 
case.'  *  *  *  This  presumption,  which  is  not  a  presumption  of 
law,  but  one  of  fact,  is  based  on  the  proposition  that  the  post  office  is 
a  public  agency  chai-ged  with  the  duty  of  transmitting  letters,  and 
on  the  assumption  that  what  ordinarily  results  from  the  transmis- 
sion of  a  letter  through  the  post  office  probably  resulted  in  the  given 
case.  It  is  a  probal)ilIty  resting  on  the  custom  of  business,  and  the 
presumption  that  the  officers  of  the  postal  system  discharged  their 
dutj\" 


§  49)  CONCLUSIVE   EULES  OR  PRESUMPTIONS.  95 

regarded  as  fairly  within  the  class  of  prima  facie  presump- 
tions.^^ 

In  several  states  the  action  of  the  courts  in  judicially  estab- 
lishing this  rule  has  been  either  anticipated  or  possibly  con- 
firmed by  statutory  provision.^® 

There  seems  to  be  no  presumption  which  prevails  as  to  the 
exact  time  of  receipt,  and  when  exact  time  is  material  it  must 
'be  proved.^'^ 


CONCLUSIVE  RULES  OR  PRESUMPTIONS. 

49.  Tlie  conclusive  presumption  is  a  rule  usually  dictated  by 
some  policy  of  the  law,  adopted  by  tbe  courts,  and  car- 
ried out  by  them  under  the  guise  of  a  rule  of  evidence. 

As  has  already  been  explained,  the  conclusive  presumption 
has  sometimes  developed  out  of  an  oft-recurring  inference, 

3  5  Jensen  v.  McCorkell,  154  Pa.  323,  26  Atl.  366,  35  Am.  St.  Rep. 
843 ;  Briggs  v.  Hervey,  130  Mass.  186 ;  Ackley  v.  Welch,  85  Hun,  178. 
32  N.  Y.  Supp.  577 ;  Merchants'  Exchange  Co.  v.  Sanders,  74  Ark.  16, 
84  S.  W.  786 ;  Dick  v.  Zimmerman,  207  111.  636,  69  N.  E.  754 ;  Veley 
V.  Chlnger,  18  Pa.  Super.  Ct.  125,  130;  Sutton  v.  Corning,  59  App. 
Div.  539,  69  N.  T.  Supp.  670;  National  Masonic  Ace.  Ass'n  v.  Burr, 
57  Neb.  437,  77  N.  W.  1098 ;  Small  v.  Town  of  Prentice,  102  Wis.  256, 
78  N.  W.  415.  Evidence  that  the  person  to  whom  the  letter  is  ad- 
dressed has  no  recollection  of  receiving  the  letter  has  been  held  in- 
sufficient to  meet  the  prima  facie  effect  of  proof  of  mailing. 
Ashley  Wire  Co.  v.  Illinois  Steel  Co.,  164  111.  149,  158,  45  N.  E.  410, 
56  Am.  St.  Rep.  1S7 ;  Roth  Clothing  Co.  v.  Marine  S.  S.  Co.,  44 
Misc.  Rep,  237,  88  N.  Y.  Supp.  987.  It  is  also  held,  carrying  out  the 
same  principle,  that,  if  an  envelope  contains  printed  directions  to  re- 
turn in  10  days  if  not  called  for,  proof  that  it  was  not  called  for  is 
sufficient  prima  facie  proof  that  it  was  duly  returned.  Hedden  v. 
Roberts,  134  Mass.  38,  45  Am.  Rep.  276. 

The  doctrine  has  also  been  extended  to  telegrams,  Oregon  S.  S. 
Co.  V.  Otis,  100  N,  Y.  446,  3  N.  E.  485,  53  Am,  Rep.  221;  Perry  v. 
German  American  Bank,  53  Neb.  89,  73  N.  W.  538,  68  Am.  St.  Rep. 
593;  Western  IVine  Co.  v.  Wright,  11  S.  D,  521,  78  N,  W,  942,  44 
L.  R.  A.  438. 

3  6  Hill's  Ann.  Laws  Or.  1892,  §  776,  subd.  24,  provides  "that  a  letter 
duly  directed  and  mailed  was  received  in  the  regular  course  of  the 
mail"  is  a  presumption  of  law.  Code  Civ.  Proc.  Cal.  24,  §  1963,  subd. 
24. 

37  Bishop  V,  Life  Insurance  Co.,  85  Mo.  App.  302,  306. 


96  PRESUMPTIONS.  (Ch.  5 

going  first  through  the  stage  of  a  prima  facie  rule.  More 
often  it  is  purely  and  simply  the  statement  of  a  doctrine  of  the 
positive  law,  which,  by  reason  of  its  readily  lending  itself  to 
the  language  of  inference  and  evidence,  on  account  of  the  facts 
to  which  it  relates,  is  stated  in  the  form  of  a  rule  of  evidence.^® 
Where  it  has  not  developed  from  a  process  of  inference,  it 
should,  strictly  speaking,  be  classed  as  a  spurious  presumption. 


SAME— TITLE  TO   LAND  BY  PRESCRIPTION. 

50.   UninteiTupted   possession    of   land   for   a   certain   period, 
nsually  fixed  by  statute,  conclusively    establishes  title. 

It  was  commonly  said  that  a  lost  grant  would  be  conclusive- 
ly presumed.  This  is  an  instance  of  the  absolute  equivalence 
of  facts  established  by  a  rule  of  law.  When  a  certain  sort  of 
possession  exists,  there  exists  a  lost  grant;  at  least,  the  law 
so  treats  the  case,  and  will  not  permit  of  evidence  to  the  con- 
trary. There  is  no  presumption  here;  no  question  of  in- 
ference; simply  a  rule  of  the  law  of  real  property  which  the 
courts  enforce.^® 

This  doctrine  of  lost  grant  has  even  been  extended  to  cases 
where  the  possession  did  not  comply  strictly  with  the  require- 
ments of  an  adverse  possession,  but  consisted  only  in  the  ex- 
ercise of  acts  of  ownership  over  a  portion  of  the  premises  to 

3  8  An  illustration  of  the  manner  in  which  the  courts  handled  this 
sort  of  thin.?  is  found  in  Tooke's  Case  (1794)  25  How.  State  Tr.  1. 
At  column  725,  Lord  Chief  .Justice  Eyre  says:  "That  it  was  not  de- 
nied, and  it  was  impossible  that  it  could  be  denied,  that  the  jury 
ought  to  find  that  he  who  means  to  depose  the  king  compasses  and 
imagines  the  death  of  the  king.  It  is,  indeed,  a  presumption  of  fact, 
arising  from  the  circumstance  of  intending  to  depose,  so  undeniable 
and  conclusive  that  the  law  has  adopted  it;  and  it  is  In  this  manner 
that  the  law  has  pronounced  that  he  who  means  to  depose  the  king 
has  compassed  and  imagined  the  death  of  the  king."  Here  it  is  a 
principle  of  the  criminal  law  that  masquerades  as  a  rule  of  evidence. 

3  0  Bryant  v.  Foot  (1867)  L.  R.  2  Q.  B.  101;  Brown  v.  Oldham,  123 
Mo.  621,  27  S.  W.  409;  Moore  v.  Luce,  29  Pa.  260,  72  Am.  Dec.  629. 
In  Trustees  of  Wadsworthville  Poor  School  v.  Jennings,  40  S.  C.  168, 
18  S.  E.  257,  891,  42  Am.  St.  Rep.  854,  the  presumption  seems  to  have 
been  held  a  rebuttable  one. 


§  51)  CONCLUSIVE   RULES   OR  PRESUMPTIONS.  97 

which  title  was  claimed ;  *°  but  this  is  not  the  prevailing  doc- 
trine.*^ It  is  generally  held  that  the  presumption  will  not 
arise  unless  the  possession  satisfies  all  the  conditions  of  the 
doctrine  of  adverse  possession. 


SAME— LEGAI^  ORIGIN  OF  CUSTOM. 

51.  Proof  of  the  existence  of  a  custom  or  the  enjoyment  of 
a  right  or  easement  during  living  memory  raises  a 
presumption  of  its  existence  from  time  immemorial 
(or  back  to  the  time  of  Richard  I,  1189);  and  the  ex- 
istence of  a  custom  from  time  immemorial  raises  a 
presumption  of  legal  origin. 4  2 

40  Fletcher  v.  Fuller,  120  U.  S.  534,  7  Sup.  Ct.  G67,  30  L.  Ed.  759. 
This  case,  however,  only  goes  to  the  extent  of  holding  that  the  jury 
should  be  permitted  to  presmne  a  lost  grant  for  the  purpose  of  quiet- 
ing title.  It  does  not  state  that  the  jury  should  be  instructed,  as  a 
matter  of  law,  to  so  find. 

41  Corning  v.  Nail  Factory,  34  Barb.  (N.  Y.)  529;  De  Lancey  v. 
Piepgras,  138  N.  Y.  26,  33  N.  E.  822;  Mission  of  Immaculate  Virgin 
V.  Cronin,  143  N.  Y.  524,  38  N.  E.  964.  In  the  case  last  cited  It  ap- 
peared that  X.,  claiming  title  by  adverse  possession,  or  by  presump- 
tion of  lost  grant,  was  unable  to  show  adverse  possession,  as  the  land 
had  never  been  inclosed  or  actually  occupied.  It  was  claimed,  how- 
ever, that  there  was  such  a  possession  as  would  suffice  to  raise  a  pre- 
sumption of  a  lost  grant.  Earl,  J.,  in  delivering  the  opinion  of  the 
court,  said  (page  527  of  143  N.  Y.,  page  965  of  38  N.  E.) :  "Here  there 
was  claim  of  title  for  many  years,  and  acts  upon  the  land  consistent 
with,  and  indeed  indicative  of,  ownership.  But  such  claim  and  acts, 
in  the  absence  of  actual  or  constructive  possession  going  with  them' 
and  characterized  by  them,  have  never  of  themselves  been  held  suffi- 
cient to  authorize  the  presumption  of  a  grant  from  the  true  owner. 
*  *  *  If,  upon  such  facts  as  exist  here,  a  grant  could  be  presumed, 
it  would  be  easy  for  a  claimant  to  land  to  get  around  the  careful 
provisions  of  law  as  to  adverse  possession.  If  he  failed  to  show 
facts  sufficient  for  adverse  possession,  he  could  yet  use  the  same  in- 
adequate facts  to  raise  a  presumption  of  a  grant." 

4  2  Rights  to  exclusive  use  of  stream:  Tyler  v.  Wilkinson,  4  Mason, 
397,  402,  Fed.  Cas.  No.  14,312;  Ingraham  v.  Hutchinson,  2  Conn.  584; 
Strickler  v.  Todd,  10  Serg.  &  R.  (Pa.)  GP>.  69.  13  Am.  Dec.  649.  Right 
of  way:  Hill  v.  Crosby,  2  Pick,  (Mass.)  466,  13  Am.  Dec.  448.  Eng- 
lish cases  on  water  rights:  Wright  v.  Howard,  1  Sim.  &  S.  190,  203; 
Bealey  v.  Shaw,  6  East,  208,  215.  In  Tyler  v.  Wilkinson,  supra.  Jus- 
tice Story  says,  referring  to  the  acquirement  of  an  exclusive  right 
to  the  use  of  the  waters  of  a  stream:    "Now  this  may  be  either  by 

m;'kelv.ev,(2d  ed.)— 7 


98  PRESUMPTIONS.  (Ch.  5 

This  rule  is  an  interesting  example  of  a  double  application 
of  the  so-called  presumption  to  reach  a  desired  result.  The 
period  of  the  beginning  of  the  reign  of  Richard  I  (1189)  was 
adopted  by  the  courts  of  law  as  the  period  to  which,  in  all  mat- 
ters of  prescription  or  custom,  living  memory  should  be  re- 
quired to  extend.  This  was  in  analogy  to  a  certain  statute 
fixing  this  as  the  period  from  which  the  limitation  in  a  real 
action  was  to  run."  At  the  time  of  the  adoption  of  this  rule, 
the  period  to  be  covered  was  8G  years.  As  time  wore  on, 
however,  the  period  became  so  long  that  it  was  impossible  for 
living  memory  to  extend  back  so  far.  Accordingly,  it  was 
necessary  to  establish  an  intermediate  rule  before  the  main 
rule  could  operate,  to  wit,  that  usage  during  living  memory 
was  equivalent  to  usage  back  to  1180,  or,  as  it  was  expressed 
in  the  language  of  presumptions,  raised  a  presumption  of  usage 
to  that  time.  The  main  rule  then  came  into  force  that  usage 
from  that  time  was  equivalent  to  proof  of  a  legal  origin,  or, 
to  again  express  it  as  a  presumption,  it  would  be  conclusively 
presumed  from  such  proof  that  a  legal  origin  existed.**  The 
period  of  living  memory  has  in  England  been  fixed  by  stat- 
ute.*^ Where  it  is  not  so  fixed,  the  courts  have  usually  adopt- 
ed the  periods  mentioned  in  the  statutes  of  limitations  in  cases 
analogous  in  principle.**'  These  two  so-called  presumptions 
are  merely  rules  of  the  law  of  property.  There  is  no  idea  of 
loQfical  inference  connected  with  them.  If  such  inference  hap- 
pens  upon  the  circumstances  of  any  particular  case  to  exist, 
it  does  not  in  any  sense  form  the  basis  of  the  rules,  for  they 
would  be  enforced  regardless  of  it,  and  often  in  spite  of  it.*^ 

a  grant  from  all  the  proprietors  whose  interest  is  affected  by  the  par- 
ticular appropriation,  or  by  a  long,  exclusive  enjoyment  without  in- 
terruption, which  affords  a  just  presumption  of  right.  By  our  law. 
upon  principles  of  public  convenience,  the  term  of  twenty  years  of 
exclusive,  uninterrupted  enjoyment  has  been  held  a  conclusive  pre- 
sumption of  a  grant  or  right." 

4  3  Rt.  Westm.  I.  c.  39. 

4  4  Bryant  v.  Foot  (1867)  L.  R.  2  Q.  B.  161,  opinion  of  Cockburn, 
C.  J. 

452  &  3  Wm.  IV.  c.  71. 

46  Coolidge  v.  Learned,  8  Pir-k.  (Mass.)  .^04.  .508;  Bicard  v.  Wil- 
liams. 7  Wheat.  (U.  S.)  50,  Story,  J.,  at  page  110  (5  L.  Ed.  398). 

47  Bryant  v.  Foot  (1867)  L.  R.  2  Q.  B.  161. 


§§  52-53)  SPURIOUS  PRESUMPTIONS.  99 


SAME— CAPACITY  OF  INFANTS  TO  COMMIT  CRIME. 

52.  Proof  that  an  infant  is  under  seven  years  of  age  is  con- 
clusive evidence  tliat  lie  is  incapable  of  committing  a 
crime. 

This  is  another  of  the  absolute  rules  of  law  usually  expressed 
in  the  language  of  evidence,  and  called  a  conclusive  presump- 
tion. 

Of  the  same  character  are  the  so-called  "conclusive  presump- 
tions" to  the  effect  that  a  female  infant  under  ten  is  incapable 
of  giving  consent  to  sexual  intercourse,*^  and  that  a  male  in- 
fant under  fourteen  is  incapable  of  committing  rape.*^  They 
are  all  rules  in  the  criminal  law,  which  the  courts  apply,  and, 
discussing  them  usually  in  connection  with  matters  of  evidence, 
speak  of  them  as  "presumptions." 


SPURIOUS   PRESUMPTIONS. 

53.  There  are  certain  rules,  called  "presumptions,"  which 
are  merely  modes  of  expressing  certain  applications 
of  the  principles  of  the  subject  of  judicial  notice,  or 
are  statements  of  certain  general  principles  and  max- 
ims in  the  law,  having  nothing  to  do  ^vith  evidence  op 
inference. 

In  reading  the  cases,  and  seeking  to  classify  the  many  so- 
called  presumptions  met  with  as  either  legitimate  or  spurious, 
it  will  be  helpful  if  the  element  of  equivalence  fully  explained 
in  section  40  be  used  as  a  test. 

48  Russ.  Crimes,  810. 

49  Reg.  V.  Jordan,  9  Car.  &  P.  118 ;  Reg.  v,  Brimilow,  Id.  366;  State 
V.  Handy,  4  Har.  (Del.)  500 :  State  v.  Pugli.  7  Jones  (N.  C.)  61.  See, 
also,  McKinny  v.  State,  29  Fla.  50.5,  10  South.  732,  30  Am.  St.  Rep. 
140.  Under  the  prevailing  American  doctrine,  evidence  is  allowed 
to  show  puberty,  and  hence  capacity.  People  v.  Randolph,  2  Parker, 
Cr.  R.  (N.  Y.)  174;  Com.  v.  Green,  2  Pick.  (Mass.)  380;  Wagoner  v. 
State,  5  Lea  (Tenn.)  352.  40  Am.  Rep.  36;  Gordon  v.  State,  93  Ga. 
531,  21  S.  E.  54,  44  Am.  St.  Rep.  189.  And  where  the  presumption 
is  held  rebuttable  the  burden  is  on  the  prosecution  to  show  capacity 
by  reason  of  puberty.  Hiltabiddle  v.  State,  35  Ohio  St.  52,  35  Am. 
St.  Rep.  592. 


100  PRESUMPTIONS.  (Ch.  5 

If  the  case  be  one  where  a  rule  is  involved  which  will  fix 
upon  a  fact  or  state  of  facts  proved  by  a  party  upon  whom  the 
burden  rests  of  introducing  evidence  such  a  character  that 
another  fact  or  state  of  facts  material  to  the  party's  case  will 
be  deemed  either  prima  facie  or  conclusively  established,  then 
the  case  is  one  of  a  legitimate  presumption. 

As  the  burden  of  proceeding  is  shifted  by  the  estabUshment 
of  a  prima  facie  case,  and  as  the  legitimate  presumption  op- 
erates (in  all  cases  except  the  few  of  conclusive  presumption) 
to  establish  a  prima  facie  case  with  respect  to  the  fact  in  issue 
which  it  afifects,  be  that  fact  a  principle  or  evidentiary  fact, 
it  can  frequently  be  determined  with  what  meaning  the  term 
"presumption"  is  being  used  in  a  given  case,  by  examining  to 
see  whether  the  court  has  recognized  any  power  in  the  so- 
called  presumption  to  shift  the  burden  of  going  forward  with 
the  evidence. 

Of  the  mass  of  so-called  "presumptions"  in  which  the  cases 
abound,  those  which  may  be  referred  by  reason  of  their  ef- 
fect to  particular  branches  of  the  law,  some  of  which  have 
been  commented  on,  are  easily  disposed  of  as  rules  in  the  law 
of  the  particular  subjects  to  which  they  relate.  There  are, 
however,  a  large  number  which  lie  outside  of  this  class.  They 
have  no  such  influence  on  the  effect  of  evidence,  and  many 
times  no  influence  at  all.  They  are,  perhaps,  general  prin- 
ciples, referable  to  no  particular  branch  of  the  law,  or  applica- 
tions of  the  theory  of  judicial  notice  stated  in  the  language  of 
presumptions.  In  any  event,  they  have  nothing  to  do  with  evi- 
dence either  in  its  use  or  effect. 

Experience  with  respect  to  certain  facts  is  so  general  and  so 
uniform,  and  men's  actions  have  been  so  universally  based 
upon  an  assumption  of  their  truth,  that  they  have  been  stated 
in  the  form  of  rules  in  the  guise  of  presumptions. °°  In  this 
shape  they  have  crept  into  the  law  of  presumptions,  and  at- 
tached themselves  to  the  law  of  evidence.     It  is  to  them  that 

BO  In  Leighton  v.  Morrill.  159  Mass.  271.  84  N.  E.  257,  Justice 
Holmes  says  (page  27S  of  159  Mass.,  and  pajre  257  of  34  N.  E.):  "Pre- 
sumptions of  fact  generally  are  question  of  fact.  They  are  merely 
the  major  premises  of  those  inferences  which  juries  are  at  liberty 
to  draw,  in  the  light  of  their  experience  as  men  of  tlie  world,  from 
the  facts  directly  proved." 


§  54)  SPURIOUS  PRESUMPTIONS.  101 

much  of  the  confusion  of  thought  in  regard  to  the  subject  of 
presumptions  may  be  traced. 


SAME— PRESUMPTION   OF   SANITY. 

54.    Every  person  •will  be  presumed  to  be  sane  until  the  con- 
trary is  slioivn. 

It  is  doubtful  if  this  means  much  more  than  that  judge  and 
jury,  being  sensible  persons,  act  in  accordance  with  the  well- 
known  fact  that  human  beings,  as  a  rule,  are  sane,  and  that 
in  considering  the  nature  and  efifect  of  their  actions,  in  court 
as  elsewhere,  it  will  be  assumed  that  they  are  rational  unless 
sanity  be  put  in  issue.  Sanity  is  one  of  those  facts,  mental  and 
physical,  which,  as  elements  of  the  normal  man,  are  judicially 
noticed.  It  will  be  assumed  that  a  man  is  sane  just  as  it  will 
be  assumed  that  he  has  two  hands  and  can  see,  hear,  etc.  ^^ 
But  this  is  not  saying  that,  if  any  one  of  these  facts  be  put  in 
issue,  there  is  any  rule  as  to  quantity  of  proof  or  the  burden 
of  proof  different  from  the  rules  governing  other  facts  in  is- 
sue. The  statement,  then,  that  a  person  will  be  presumed  to 
be  sane  until  the  contrary  is  proven,  is  not  correct ;  for,  if  any 
proof  is  made  necessary  by  the  fact  being  put  in  issue,  the 
ordinary  rule  prevails  that  the  person  alleging  it  must  prove 
it,  whether  it  be  sanity  or  insanity  which  is  alleged.^^ 

61  In  State  v.  Pike,  49  N.  H.  399,  p.  443,  6  Am.  Rep.  583,  it  is  said: 
"Ttiere  are  certain  natural  or  usual  causes,  effects,  conditions,  and 
customs,  generally  within  the  reach  of  the  experience  or  the  observa- 
tion or  the  reason  of  men,  which  a  jury  are  justified  in  finding  by  an 
inference  or  presumption  of  fact  when  there  is  no  testimony  showing 
an  exceptional  instance  in  the  case  on  trial.  *  *  *  The  presump- 
tion of  sanity  is  not  an  artificial  or  legal  presumption,  but  a  natural 
inference  of  fact,  to  be  made  by  a  jury  from  the  absence  of  evidence 
to  ^ow  that  a  party  did  not  enjoy  that  soundness  which  experience 
proves  to  be  the  general  condition  of  the  human  mind."  In  Hunt  v. 
Graham,  15  Pa.  Super.  Ct.  42.  we  have  a  plain  illustration  of  a  prin- 
ciple of  judicial  notice  stated  in  the  language  of  presumptions.  There 
it  was  held  that  it  is  presumed  that  a  boy  15%  years  of  age  is  of 
sufficient  capacity  to  be  sensible  of  danger  and  to  have  the  power 
to  avoid  it.  See,  also,  Green  v.  So.  Pac.  R.  R.  Co.,  122  Cal.  563,  55 
P.  577. 

B2  O'Connell  v.  People,  87  N.  Y.  377,  41  Am.  Rep.  379 ;    Rogers  v. 


102  PRESUMPTIONS.  (Ch.  5 

In  criminal  cases,  where  sanity  is  put  in  issue  by  the  defense 
of  insanity  being  set  up,  the  prevaiHng  doctrine  is  that  it  must 
be  proved  as  a  part  of  the  prosecution's  case,  in  the  same  way 
as  other  facts ;  i.  e.,  beyond  a  reasonable  doubt.  If,  after  the 
evidence  is  all  in,  there  is  a  reasonable  doubt  as  to  the  accused 
being  sane,  there  is  a  reasonable  doubt  as  to  his  being  guilty, 
and  hence  he  cannot  be  convicted.  ^^  This  seems  the  correct 
doctrine  on  principle,  though  it  has  not  always  been  followed. 
It  has  been  held  that  where  the  accused  sets  up  the  defense  of 
insanity  he  must  establish  it  by  a  preponderance  of  evidence,^* 

Armstrong  Co.  (Tex.  Civ.  App.)  .30  S.  W.  848 ;  People  v.  Gnvbutt,  17 
Mich.  9,  97  Am.  Dec.  162.  In  People  v.  Garbutt,  Chief  Justice  Cooley 
says  (page  23  of  17  Mich.):  "They  [the  prosecution]  are  at  liberty  to 
rest  upon  the  presumption  of  sanity  until  proof  of  the  contrary  condi- 
tion is  given  by  the  defense.  But,  when  any  evidence  is  given  which 
tends  to  overthrow  that  presumption,  the  jury  are  to  examine,  weigh, 
and  pass  upon  it,  with  the  understanding  that,  although  the  initiative 
in  presenting  the  evidence  is  taken  by  the  defense,  the  burden  of  proof 
upon  this  part  of  the  case,  as  well  as  upon  the  other,  is  upon  the  prose- 
cution to  establish  the  conditions  of  guilt."  In  Sutton  v.  Sadler 
(1857)  3  C.  B.  (N.  S.)  87,  there  is  an  intelligent  discussion  of  the  so- 
called  presumption  of  sanity,  which  is  said  not  to  be  a  presumption 
of  law,  and  not  to  shift  the  burden  of  proof. 

In  a  recent  cause  celebre,  where  the  defense  of  insanity  was  inter- 
posed, the  trial  judge  in  his  instructions  to  the  jury  seems  to  have 
misconceived  the  principle  of  burden  of  proof  as  applied  to  the  ques- 
tion of  sanity,  so  clearly  stated  above  by  Mr.  Justice  Cooley.  The  in- 
struction referred  to  was  :  "The  legal  presumption  is  that  the  defend- 
ant was  sane  when  he  committed  the  act,  and  it  was  not  necessary  for 
the  prosecution  to  show  that  he  was  not  sane.  Sanity  being  the  nor- 
mal and  usual  condition  of  the  community,  the  law  presumes  sanity  j 
hence  a  prosecutor  may  work  on  the  presumption  of  sanity.  Who- 
ever denies  it  must  prove  insanity.  The  burden  of  overthrowing  the 
presumption  of  sanity,  and  of  showing  insanity,  is  upon  the  person 
who  makes  the  allegation."  Extract  from  charge  of  Mr.  Justice 
Fitzgerald  In  People  v.  Thaw,  as  printed  in  New  York  Sun,  April' 
10.  1907. 

B3  State  V.  Jones.  50  N.  H.  309,  9  Am.  Rep.  242;  Lilly  v.  People, 
148  111.  407,  36  N.  E.  95;  Plummer  v.  State,  135  Ind.  308,  320,  34  N.  E. 
968.  971  ;  Armstrong  v.  State,  30  Fla.  170,  197,  11  South.  618.  17  L. 
R.  A.  484. 

c '  Com.  V.  Bezek,  108  Pa.  603,  617,  32  Atl.  109,  111 ;  Com.  v.  Eddy, 
7  Gray  (Mass.)  582 ;  Cavaness  v.  State.  43  Ark.  331 ;  People  v.  Ward, 
105  Cal.  .335,  .38  Pac.  945;  State  v.  Schaefer,  110  Mo.  96,  22  S.  W. 
447;   State  v,  Bruce,  48  Iowa,  530,  30  Am.  Rep.  403;   Maxwell  v.  State, 


§  64)  SPURIOUS   PRESUMPTIONS.  103 

and  in  several  instances  the  courts  have  gone  so  far  as  to  say 
the  accused  must  estabHsh  the  defense  of  insanity  beyond  a 
reasonable  doubt.  ^^ 

In  civil  cases  the  ordinary  rule  prevails.  Sanity,  if  put  in 
issue,  must  be  proved  by  the  party  relying  upon  it,  and  the 
same  is  true  of  insanity.  He  who  affirms  and  relies  upon  the 
one  fact  or  the  other  must  establish  it  by  a  preponderance  of 
evidence.^® 

Suppose  that  A.  brings  a  case  against  X.,  and  seeks  damages 
for  breach  of  contract,  and  the  fact  of  the  sanity  of  X.  is  not  put 
in  issue,  A.  does  not  have  to  prove  it  by  introducing  evidence, 
though  it  is  essential  to  the  validity  of  the  contract.  X.'s  sanity 
will  be  taken  for  granted.  This  is  because  the  fact  that  sanity 
is  an  ordinary  attribute  of  a  human  being  is  judicially  noticed. 
Another  way  of  describing  it  is  to  say  that  sanity  is  presumed ; 
but  it  is  a  misleading  way,  because  it  puts  in  the  shape  of  a 

89  Ala.  150,  7  South.  824;  State  v.  Lawrence,  57  Me.  574;  King  v. 
State,  91  Tenn.  617,  647,  20  S.  W.  169,  176. 

5  5  State  V.  Spencer,  21  N.  J.  Law,  196.  The  doctrine  expressed  in 
this  case  was  somewhat  modified  by  later  decisions  which  seem  to 
require  only  a  preponderance  of  evidence.  Graves  v.  State,  45  N.  J. 
Law,  347,  46  Am.  Rep.  778.  That  insanity  must  be  proved  "to  the 
satisfaction  of  the  jury" :  Baccigalupo  v.  Com.,  33  Grat.  (Va.)  807, 
36  Am.  Rep.  795. 

56  Crowninshield  v.  Crowninshield,  2  Gray  (Mass.)  524;  Delafield 
V.  Parish,  25  N.  Y.  33 ;  Comstock  v.  Ecclesiastical  Soc,  8  Conn.  254, 
20  Am.  Dec.  100 ;  Pike  v.  Pike,  104  Ala.  642,  16  South.  689 ;  Rogers 
v,  Armstrong  Co.  (Tex.  Civ.  App.)  30  S.  W.  848;  Francis  v.  Wilkinson, 
147  111.  370,  35  N.  E.  1-50;  Evans  v.  Arnold,  52  Ga.  169 ;  Hall  v.  Perry, 
87  Me.  509,  33  Atl.  160,  47  Am.  St.  Rep.  352;  Prentis  v.  Bates,  93  Mich. 
234,  53  N.  W.  153,  17  L.  R.  A.  494:  Buckey  v.  Buckey,  38  W.  Va.  168, 
18  S.  E.  383.  In  several  of  the  states  the  presumption  is  recognized 
as  having  some  weight  in  civil  cases, — such  weight  as  will  relieve 
the  person  relying  on  sanity  from  introducing  any  evidence  until  evi- 
dence of  insanity  is  introduced.  See  Egbert  v.  Egbert,  78  Pa.  320; 
Hardy  v.  Merrill,  56  N.  H.  227,  22  Am.  Rep.  441;  Elkinton  v.  Brick, 
44  N.  J.  Eq.  154,  15  Atl.  391,  1  L.  R.  A.  161 ;  Hawkins  v.  Grimes,  13 
B.  Mon.  (Ky.)  258. 

There  has  been  a  recent  tendency  to  treat  the  so-called  presumption 
of  sanity  as  a  real  presumption,  and,  as  thus  effective,  to  excuse 
proof;  and  there  have  been  statutory  provisions,  such  as  that  in  New 
York  (Section  2653a,  Code  Civ.  Proc.)  which  have  been  construed  as 
bringing  about  this  result.  Dobie  v.  Armstrong,  160  N.  Y.  584,  55  N. 
E.  302.    And  see  note,  13  Harv.  Law  Rev.  518. 


104  PRESUMPTIONS.  (Ch.  5 

rule  what  is  not  a  rule  at  all,  as  will  be  plainly  shown  by  the 
next  illustration.  A.  claims,  under  the  will  of  M.,  certain  land, 
which  X.  claims  as  heir,  upon  the  ground  that  M.  was  insane 
when  he  made  the  will.  A,  has  the  burden  of  proof  and  the 
burden  of  proceeding  as  to  M.'s  sanity.  He  must  prove  the 
sanity  of  M.  by  a  preponderance  of  evidence,  the  same  as  any 
other  fact.  It  will  thus  be  seen  that,  if  the  rule  that  sanity  is 
presumed  be  applied  to  this  case,  it  would  lead  to  a  wrong  re- 
sult. The  fact  of  the  sanity  of  men  in  general  is  just  as  much 
noticed  in  this  case  as  in  the  other ;  only,  sanity  being  one  of 
the  facts  in  issue,  the  effect  is  not  the  same.^^ 


SAME— PRESUMPTION   FOR    OR   AGAINST    CONTRIBUTO- 
RY NEGLIGENCE. 

55.  There  is  a  presumption  that  one  who  claims  injury  from 
the  negligence  of  another  was  guilty  of  contributory 
negligence. 

67  A  peculiar  misuse  of  the  term  "presumption"  and  misconception 
of  the  doctrine  of  the  burden  of  proof  with  respect  to  sanity  is  found 
in  a  recent  case.  In  re  Knox's  Will,  123  Iowa,  24,  9S  N.  W.  4G8.  The 
testator  was  shown  by  evidence  to  have  been  insane  prior  to  the  ex- 
ecution of  the  will,  and  to  have  been  so  for  some  time.  The  court  In 
its  instructions  to  the  jury  laid  down  the  following  doctrine:  "Ev- 
ery man  is  presumed  in  the  first  instance  to  be  sane,  and  the  burden 
of  proving  insanity  is  upon  him  who  asserts  it;  but,  insanity  having 
been  once  established,  it  will  be  presumed  to  continue  imtil  the  con- 
trary is  shown,  and  the  burden  is  then  cast  upon  him  who  asserts  a 
return  to  sanity." 

An  intelligent  discussion  of  the  same  subject  is  found  in  Braustra- 
tor  V.  Crow,  162  Ind.  362,  69  N.  E.  668,  where  the  court  said:  "The 
plaintiff  had  undertaken  to  establish  the  testamentary  incapacity  of 
the  testator  at  the  time  he  excuted  the  contested  will.  This  they 
could  do  only  by  maintaining  incapacity  by  a  preponderance  of  the 
whole  evidence.  Nothing  short  of  a  preponderance  would  avail  them' 
anything.  If  it  turned  out  that  the  evidence  was  equally  balanced, 
the  plaintiffs  should  have  failed.  So,  when  the  plaintiffs  established 
unsoundness  and  set  the  presumption  of  incapacity  going,  that  only 
served  to  create  a  prima  facie  case,  which  would  entitle  them  to  a 
verdict  if  the  defendants  introduced  no  evidence  sufficient  to  over- 
come it;  but,  if  the  defendants  by  their  evidence  overthrew  the  pre- 
sumption, it  wafi  not  necessary  for  them  to  go  further  to  defeat  the 
plaintiffs." 


§  55)  SPURIOUS  PKESUMPTIONS.  105 

This  is  only  one  way  of  stating  a  rule  which  prevails  in  some 
jurisdictions,  with  respect  to  actions  for  negligence,  to  the  ef- 
fect that  the  plaintiff  must  prove  as  a  part  of  his  case  freedom 
from  contributory  negligence  in  order  to  have  a  recovery. 

The  doctrine  has  been,  on  the  other  hand,  stated  universal- 
ly as  follows:  "But  in  other  jurisdictions,  where  the  burden 
js  not  on  the  plaintiff  of  proving  approximately  that  he  was 
'not  contributory  negligent,  the  presumption  is  that  he  was  not 
contributorily  negligent."  ^^ 

Strictly  speaking,  the  subject  of  presumption  is  not  involv- 
ed, and  we  are  only  dealing  with  a  situation  where  the  very 
simple  principle  applies  which  requires  that  he  who  alleges  a 
fact  must  prove  it  in  order  to  win  his  case.  If  it  is  a  material 
fact  in  the  plaintiff's  prima  facie  case,  as  it  is  in  many  juris- 
dictions, that  he  show  freedom  from  contributory  negligence, 
then  he  must  introduce  evidence  to  prove  it.  ^^ 

If,  on  the  contrary,  it  is  the  established  law  that  contribu- 
tory negligence  is  a  matter  of  defense  to  be  alleged  and  proved 
by  the  defendant,  then  the  defendant  must,  if  he  relies  upon 
such  defense,  bring  forward  the  proof.^" 

In  the  federal  courts  the  rule  prevails  that  contributory  neg- 
ligence is  matter  of  defense.  In  the  absence  of  any  evidence, 
therefore,  the  defense,  if  set  up,  will  fail." 

There  is  no  presumption  in  the  case  either  way,  though,  as 
in  the  case  above  cited, ^^  the  language  of  presumption  is  used 
with  singularly  confusing  results  in  the  discussion  of  the  sub- 
ject. 

68  Lawson,  Presumptive  Ev.  133. 

50  2  Cooley  on  Torts  (3cl  Ed.)  p.  1439;  "Western  v.  Troy,  139  N.  Y. 
281,  34  N.  E.  780 ;  Manigold  v.  Black  River  Traction  Co.,  81  App.  Div. 
381 ;  Gallager  v.  Proctor,  84  Me.  41,  24  Atl.  459 ;  No.  Clii.  St.  Ry.  Co. 
v.  Louis,  138  111.  9,  27  N.  E.  451.  , 

6  0  In  Indiana,  until  1899,  the  rule  that  plaintiff  must  show  freea|Om 
from  contributory  negligence  prevailed.  Nichols  v.  B.  &  O.  S.  'W. 
R.  Co.,  33  Ind.  App.  229,  71  N.  E.  170.  In  that  year  the  rule  was 
changed  by  statute  (Acts  1899.  p.  58). 

61  Texas,  etc.,  R.  Co.  v.  Gentry,  163  U.  S.  363,  16  Sup.  Ct.  1104,  41 
L.  Ed.  186. 

62  Nichols  V.  B.  &  O.  S.  W.  R.  Co.,  33  Ind.  App.  229,  71  N.  E.  170. 


106  PRESUMPTIONS.  (Ch.  5 


SAME— PRESUMPTION   OF   INTENT. 

56.    Every   one   ivill   be  presumed   to  intend   tlie   natural   and 
probable    consequences    of   bis    acts. 

The  laws  of  human  thought  and  action  teach  that  man  acts 
to  accomplish  results,  and  results  which,  in  accordance  with 
the  ordinary  laws  of  nature,  he  thinks  will  follow.  That  the 
results  are  sometimes  different  from  those  which  are  intended 
is  undoubtedly  true.  Nevertheless,  in  judging  of  a  man's  in- 
tentions, common  sense  dictates  that  we  go  by  the  results  of 
his  actions.  It  is  the  ordinary  way  of  doing,  as  well  as  the 
natural  way.  Judges  are  cognizant  of  this  method  of  thought, 
and  think  and  act  in  their  judicial  capacity  in  accordance  with 
it.  It  is  one  of  the  things  that  is  judicially  noticed,  and  upon 
it,  as  a  principle,  juries  are  instructed  to  base  their  conclusions 
as  to  actions  which  they  are  called  upon  to  consider.  There  is 
no  presumption  about  the  matter.  The  rule  is  either  a  simple 
recognition  of  a  fact  of  common  experience,  judicially  noticed ; 
or  it  may  be,  and  sometimes  is,  a  rule  of  positive  law,  as  when 
the  law  declares  that  one  shall  be  chargeable  with  the  natural 
consequences  of  his  acts,  whether  he  intended  them  or  not.®^ 

6  3  Thayer,  Cas.  Ev.  (2d  Ed.)  p.  42;  .Jones  v.  Ricketts,  7  Md.  108. 
Cases  which  hold  that  a  person  is  bound  by  the  terms  of  a  written  con- 
tract accepted  or  signed  by  him,  without  regard  to  whether  he  has 
read  it  or  not,  are  illustrations  of  this  principle.  Fonseca  v.  Cunard  S. 
S.  Co.,  153  Mass.  553,  27  N.  E.  665,  12  L.  R.  A.  340,  25  Ain.  St.  Rep. 
660 ;  Germania  Ins.  Co.  v.  Memphis  &  C.  R.  Co.,  72  N.  Y.  90,  28  Am. 
Rep.  113;  Hartford  Life  &  Annuity  Ins.  Co.  v.  Gray,  91  111.  150,  165; 
Ryan  v.  Insursnce  Co.,  41  Conn.  108. 19  Am.  Rep.  490 ;  Clem  v.  Railroad 
Co.,  9  Ind.  488,  68  Am.  Dec.  653.  This  so-called  presumption  is  some- 
times met  with  in  criminal  cases,  where  the  intent  with  which  an  act 
is  done  becomes  material.  In  Com.  v.  York.  9  Mete.  (Mass.)  93,  43 
Am.  Dec.  373,  where  the  question  was  as  to  the  intent,  where  nothing 
except  the  killing  was  shown,  the  court  hold  that  malice  will  be  pre- 
sumed, and  use  the  following  language  (page  103  of  9  Mete.  [Mass.]) : 
"A  sane  man,  a  voluntary  agent  acting  upon  motives,  must  be  pre- 
sumed to  contemplate  and  intend  the  necessary,  natural,  and  probable' 
consequences  of  his  own  acts.  If,  therefore,  one  voluntarily  or  will- 
fully does  an  act  which  has  a  direct  tendency  to  destroy  another's  life, 
the  natural  and  necessary  conclusion  from  the  act  is  that  he  intended 


§  57)  SPURIOUS   PRESUMPTIONS.  107 

As  a  doctrine  of  positive  law,  it  is  applied  to  determine  man's 
legal  liability  for  an  act  committed  by  him,  and  has  an  active 
effect  on  the  result  of  the  trial.  As  an  expression  of  a  principle 
of  human  action  in  accordance  with  which  judge  and  jury 
are  to  consider  the  actions  of  parties  and  witnesses,  it  has  on- 
ly a  negative  effect.    In  neither  shape  is  it  a  rule  of  evidence. 


SAME— PRESUMPTION   AGAINST   CHANGE. 

57.    It   T^ill   be   presumed  that  a   previously   existing   state   of 
things  continues  to  exist. 

This  is  only  another  way  of  saying  that  the  court  takes  for 
granted  such  matters  of  common  experience  as  are  incidental 
to  the  consideration  of  a  case  in  the  way  in  which  any  intelli- 
gent person  does.  It  does  not  mean  that,  if  the  continued  ex- 
istence of  a  state  of  facts  is  in  issue,  there  is  any  presumption 
which  will  relieve  the  one  party  or  the  other  from  the  ordinary 
amount  of  proof  required  to  establish  such  facts. ^*    The  fact 

so  to  destroy  such  person's  life.  So,  if  the  direct  tendency  of  the  will- 
ful act  is  to  do  another  some  great  bodily  harm,  and  death  in  fact  fol- 
lows as  a  natural  and  probable  consequence  of  the  act,  it  is  presumed 
that  he  intended  such  consequence,  and  he  must  stand  legally  respon- 
sible for  it."  See,  also,  Davis  v.  Marxhausen,  103  Mich.  315,  61  N.  W. 
504. 

6  4  Pickup  V.  Insurance  Co.  (1878)  3  Q.  B.  Div.  594,  In  Wllkins  v. 
Eai'le.  44  N.  Y.  172,  4  Am.  Rep.  655,  A.  claimed  from  X.,  a  hotel  keeper, 
damages  for  the  loss  of  $20,000  which  he  claimed  he  deposited  in  the 
hotel  safe.  Evidence  was  allowed  to  show  that  A.  had  in  his  posses- 
sion shortly  before  the  time  of  making  the  deposit  the  securities  and 
bills  which  he  claimed  to  have  deposited.  This  was  on  the  theory  that 
possession  once  shown  would  be  presumed  to  continue.  The  court  use 
the  following  language  (page  192  of  44  N.  Y.):  "There  is  a  legal  pre- 
sumption of  continuance.  A  partnership  once  established  is  presumed 
to  continue.  Life  is  presumed  to  exist.  Possession  is  presumed  to 
continue.  The  fact  that  a  man  was  a  gambler  twenty  months  justifies 
the  presumption  that  he  continues  to  be  one.  An  adulterous  inter- 
course is  presumed  to  continue.  So  of  ownership  and  nonresidence." 
The  word  "presumption"  here  obviously  means  nothing  more  than  in- 
ference. See  State  v.  Plym,  43  Z^Iinu.  385.  387,  45  N.  W.  848,  where 
the  existence  of  any  presumption  as  to  continuance  of  life  is  expressly 
disclaimed.  Possession  shown  to  be  adverse  at  one  time  presumed  to 
continue  adverse:    Barrett  v.  Stradl,  73  Wis.  385,  41  N.  W.  439,  9  Am. 


108  PRESUMPTIONS.  (Ch.  5 

that  such  condition  has  been  shown  to  exist  at  any  particular 
time  is  one  fact,  from  which  an  inference  or  presumption  may 
be  drawn  that  it  continued  to  exist.  In  this  connection,  there- 
fore, the  word  "presumption"  is  used  synonymously  with  "in- 
ference," as  well  as  to  express  a  general  principle  that  courts 
act  upon  the  assumption  that  such  inference,  as  a  matter  of 
common  experience,  will  be  drawn. 

A.  sues  X.  to  have  a  deed  declared  void  on  the  ground  the 
grantor  was  insane  at  the  time  of  execution.  A.  proves  the 
grantor  was  insane  at  times  both  before  and  after  the  time  of 
the  execution,  but  it  appears  that  the  insanity  was  of  an  inter- 
mittent character.  There  is  no  presumption  that  the  insanity 
existed  at  the  time  of  the  execution  of  the  deed.  ^° 

Subsequent  facts  are  frequently  relied  upon  to  prove  a 
previously  existing  state  of  facts.  The  principle  underlying 
such  proof  is  the  same,  to  wit,  inference ;  and  the  inference 
may  be  strong  or  weak,  according  to  the  nature  of  the  facts. 
There  is  no  question  of  presumption  involved,  though  it  is 
often  spoken  of  as  such.®^ 


PRESUMPTION  AS  TO  LAW  OF  ANOTHER  STATE  OR 

COUNTRY. 

58.  In  the  absence  of  proof,  tlie  laAv  of  another  state  Tvill  be 
presumed  to  be  the  same  as  that  of  the  forum  ^vhere 
the   case   is  being  tried. 

St.  Rep.  795.  Presumption  of  continuance  of  residence:  Bowdoinham 
V.  Inhabitants  of  Pliippsburg,  63  Me.  497;  Rixford  v.  Miller,  49  Vt. 
ol9.  Possession  as  tenant  presumed  to  continue  of  that  character : 
Leport  V.  Todd,  32  N.  J.  Law,  124.  Insanity  once  sliown  presumed  to 
continue:  Taylor  v.  Trich,  165  Pa.  586,  30  Atl.  1053,  44  Am.  St.  Rep. 
679. 

G"'  In  McPeck's  Heirs  v.  Graham's  Heirs.  56  W.  Va.  200.  49  S.  E.  125, 
127.  the  court  cite  with  approval  the  statement:  "If  the  malad.y  is 
occasional  or  intermittent  in  its  nature,  the  presumption  [of  contin- 
uance] does  not  arise;  and  he  who  relies  on  insanity  proved  at  an- 
other time  must  prove  its  existence  also  at  the  time  allesod." 

00  Gibson  v.  Brown,  214  111.  3.30,  338,  73  N.  E.  578.  In  this  case  it 
became  material  to  show  whether  the  grantor  in  a  deed  dated  in  1858 
was  married,  and  it  was  hold  that  the  recital  in  a  deed  executed  by 
the  same  irrantnr  in  1802  that  ho  was  a  baclielor,  while  not  conclu- 
sive, would  be  "presumptive  evidence"  that  he  was  unmarried  in  1858. 


§  58)  SPURIOUS  PRESUMPTIONS.  109 

This  is  an  interesting  illustration  of  the  effect  of  the  non- 
application  of  the  doctrine  of  judicial  notice.  It  goes  without 
saying  that  there  is  no  question  of  presumption  involved.  The 
courts  in  their  decision  of  questions  apply  the  law  as  they 
judicially  know  it;  i.  e.,  the  law  of  their  own  forum.  They 
have  no  power,  except  where  the  principle  of  judicial  notice 
,comes  in  and  gives  them  the  right,  to  inquire  into  the  laws  of 
another  country  or  state.  If  this  doctrine  is  inapplicable,  then 
a  situation  exists  which  has  given  rise  to  the  expression  that 
a  presumption  exists  that  the  law  of  such  other  state  is  the 
same  as  that  of  the  forum  of  trial.  This,  of  course,  only  means 
that,  if  either  party  relies  upon  the  law  of  another  state,  he 
must,  to  have  it  considered,  offer  proof.^'^ 

The  cases  in  which  questions  as  to  the  law  of  another  state 
or  country  have  arisen  are  very  numerous.  They  may  be 
roughly  divided  into  two  classes :  ^  ^ 

(1)  Those  in  which  the  common  law  has  been  called  in  ques- 
tion, in  which  cases  the  courts  have  uniformly  laid  down  the 

67  Pauska  v.  Dans.  31  Tex.  67;  Burgess  v.  Western  Union  Telegraph 
Co.,  92  Tex.  125,  46  S.  W.  794,  71  Am.  St.  Rep.  833;  Banco  De  Sonera 
V.  Bankers'  etc.,  Co.,  124  Iowa,  576,  100  N.  W.  532,  104  Am.  St.  Rep. 
367;  Cavallaro  v.  Texas,  etc.,  R.  R.,  110  Cal.  348,  42  Pac.  918,  52  Am. 
St.  Rep.  94. 

68  In  a  well-considered  article  upon  "Presumption  of  the  Foreign 
Law"  in  19  Harvard  Law  Rev.  p.  401.  the  cases  are  divided  into  three 
classes:  First.  Where  the  court  judicially  notices  that  the  foreign 
state  has  the  same  system  of  law  as  that  of  the  forum,  the  court  of 
the  forum  will  presume  that  the  law  of  the  foreign  state  is  the  same 
as  that  of  the  system  of  law  (exclusive  of  statutoiy  changes)  funda- 
mentally common  to  both;  otherwise,  it  will  recognize  no  presumption 
at  all.  Second.  The  cases  which  treat  the  law  of  the  forum,  even 
though  it  be  statutory,  as  always  applicable,  in  the  absence  of  proof 
of  the  foreign  law.  Third.  The  cases  where,  when  judicial  notice  is 
taken  that  the  foreign  state  has  the  same  system  of  law,  the  court  will 
presume  the  law  to  be  the  same  as  that  of  the  system  of  law  (exclu- 
sive of  statutory  changes)  common  to  both;  and,  when  judicial  notice 
is  taken  that  the  foreign  state  has  a  different  system  of  law.  the  court 
will  apply,  in  the  absence  of  proof  of  the  foreign  law,  the  law  of  the 
forum,  whether  statutory  or  otherwise. 

A  full  citation  of  the  cases  will  be  found  in  this  article,  and  a 
helpful  discussion  of  them  from  the  point  of  view  taken.  It  is  be- 
lieved, however,  that  the  cases  will  classify  themselves  somewhat 
more  simply  as  set  forth  in  the  text. 


110  PRESUMPTIONS.  (Ch.  5 

rule  that  the  common  law  of  another  jurisdiction,  in  which 
it  is  judicially  noticed  that  the  common  law  prevails,  will  be 
presumed  to  be  the  same  as  the  common  law  of  the  forum  of 
trial. «^ 

It  is  to  be  noticed  that  the  first  step  and  the  essential  element 
in  these  cases  is  the  exercise  by  the  court  of  the  function  of 
judicial  notice  in  determining  the  question  whether  the  com- 
mon law  does  or  does  not  exist  in  the  jurisdiction  in  question.'^*' 

This  matter  once  determined,  the  further  treatment  of  the 
situation  is  simply  that  applicable  to  the  subject  of  proof  in 
general.  He  who  alleges  must  prove,  and  in  the  absence  of 
any  proof  the  case  upon  the  issue  involved  must  go  against 
him, 

(2)  Those  in  which  the  statutory  law  of  another  jurisdiction 
has  become  material,  in  which  cases  the  courts  have  either  (a) 
laid  down  the  rule  that  the  statutory  law  will  be  presumed  to 
be  the  same  as  in  the  forum  of  trial,  or  (b)  declared  that  they 
will  not  presume  the  statutes  to  be  the  same  as  in  the  forum  of 
trial,  depending  upon  M^hether  or  not  the  party  relies  upon  the 
existence  or  nonexistence  of  such  statutes  for  the  success  of 
his  case. 

As  an  illustration  of  rule  (a)  the  following  may  be  taken : 
A.  sued  X.  for  injuries  sustained  in  Illinois  through  the  neg- 
ligence of  a  fellow  servant.     Suit  was  brought  in  Wisconsin, 


69  Miisser  v.  Stauffer.  178  Pa.  99.  35  Atl.  709.  In  this  case  it  was 
held  that  a  defense  to  an  action  on  a  contract  executed  in  Virginia, 
which,  under  Pennsylvania  laws,  was  a  good  defense,  would  be  held 
sufficient,  on  the  theory  that  the  same  common  law  prevailed  in  Vir- 
ginia. Peter  Adams  Paper  Co.  v.  Cassard,  20G  Pa.  179,  55  Atl.  949, 
where  it  was  held  that  the  common  law  which  prevails  in  Pennsylva- 
nia, preventing  recovery  against  a  married  woman  as  a  surety,  would 
be  presumed  to  prevail  in  New  York,  although  as  a  matter  of  fact  the 
statutes  in  New  York  have  changed  the  common  law.  Gates  v.  New- 
man, IS  Ind.  App.  392,  46  N.  E.  654;  Vi^ells  v.  Schuster,  etc.,  Bank,  23 
Colo.  .534,  48  Pac,  809;  Gooch  v,  Faucett,  122  N.  C,  270,  29  S.  E.  362, 
39  L,  R,  A,  835 ;  Aslanian  v.  Dostumian,  174  Mass.  328,  54  N.  E.  S45, 
47  L.  R.  A,  495,  75  Am.  St.  Rep.  348, 

7  0  Aslanian  v.  Dostumian,  174  Mass.  328,  54  N.  E.  845,  47  L.  R.  A. 
495,  75  Am.  St.  Rep.  348.  Here  the  court  took  judicial  notice  that  the 
common  law  does  not  exist  in  Turkey,  and  declined  to  uphold  a  de- 
fense to  a  suit  on  a  piece  of  commenial  paper  payable  in  Turkey  im- 
der  the  principles  of  the  law  merchant. 


§  58)  SPURIOUS   PRESUMPTIONS.  Ill 

where  the  statutes  permitted  recovery.  X.  claimed  no  recov- 
ery could  be  had  under  the  law  of  Illinois,  but  no  proof  was 
offered  as  to  such  law.  The  court  held  that  the  law  of  Illinois 
would  be  presumed  to  be  the  same  as  in  Wisconsin,  and  that 
recovery  could  be  had.'^^ 

In  this  case,  as  in  many  similar  ones,  the  result  reached 
was  simply  the  enforcement  of  the  rule  that  a  party  relying 
upon  the  law  of  another  state  must  prove  it.  Here  X.  relied 
upon  the  law  of  Illinois  as  a  defense.  He  offered  no  proof, 
and  the  court  could  not  take  judicial  notice  of  it.  The  result 
was  that  X.  failed  in  his  defense.  To  state  this  result  in  the 
language  of  presumptions, — i.  e.,  that  the  court  will  presume 
that  the  law  of  Illinois  was  the  same  as  the  law  of  Wisconsin — 
in  reality  meant  nothing  further.'^ 

Rule  (b)  above  stated,  to  the  effect  that  the  statutes  of  a 
sister  state  will  not  be  presumed  to  be  the  same  as  in  the  forum 
of  trial,  may  be  illustrated  as  follows :  A.  sued  X.  in  Wiscon- 
sin on  a  note  made  and  payable  in  Illinois.  X.  pleaded  usury, 
but  failed  to  prove  the  laws  of  Illinois  on  this  subject.  The 
statutes  of  Wisconsin  imposed  forfeiture  as  a  penalty  in  cases 
of  usury.  X.  claimed  the  benefit  of  the  supposed  presumption 
that  the  statutes  of  another  state  were  the  same  as  the  statutes 
of  Wisconsin.  It  was  held  that  the  statutes  would  not  be  pre- 
sumed to  be  the  same.''^ 

71  McCarthy  v.  Whitcomb,  110  Wis.  113,  85  N.  W.  707. 

7  2  Other  cases  which,  if  analyzed,  will  be  found  to  be  of  the  same 
character,  are  In  re  Harrington's  Estate,  140  Cal.  244,  73  Pac.  1000, 
98  Am.  St.  Rep.  51;  Fisher  v.  Donovan,  57  Neb.  361,  77  N.  W.  778,  44 
L.  R.  A.  383;  V7oolacoot  v.  Case,  63  Kan.  35,  64  Pac.  965;  Dignan  v. 
Nelson,  26  Utah,  186,  72  Pac.  936. 

73  Hull  V.  Augustine,  23  Wis.  383.  This  case  is  a  particularly  sig- 
nificant one,  for  the  reason  that  the  doctrine  has  been  laid  down  in 
Wisconsin  quite  strongly  that  the  courts  will  presume  the  statutory 
law  of  another  state  to  be  the  same  as  in  Wisconsin.  It  shows  that, 
when  the  courts  are  brought  face  to  face  with  the  proposition  of  al- 
lowing the  rule  to  be  used  as  a  real  presumption  or  rule  of  law,  tak- 
ing the  place  of  proof,  they  dec-line  to  go  to  this  length,  although  they 
still  find  difficulty  in  getting  away  from  the  language  of  presump- 
tions. In  this  case  they  say:  "In  the  absence  of  proof  the  court  will 
presume  that  the  laws  of  a  foreign  state,  nothing  being  shown  to  the 
contrary,  correspond  to  our  own;    but  this  presumption  is  not  in- 


112  PRESUMPTIONS.  (Ch.  5 

The  results  reached  by  the  application  of  rule  (b)  are  no 
different  from  those  following  the  application  of  rule  (a). 

In  the  former  case,  as  in  the  latter,  the  effect  is  simply  to 
leave  upon  the  shoulders  of  the  party  who  has  the  burden  of 
proving  a  case  or  defense  the  task  of  proving  it,  and  in  case 
of  his  failure  to  do  so  the  court  have  fallen  into  the  way  of 
explaining  the  result  by  saying  they  will  not  presume  that  that 
is  a  fact  which  ought  to  have  been  proved,  but  was  not.'^* 


SAME— PRESUMPTION  OF  REGULARITY  AND  LEGALITY. 

59.   Presumption  that  pnblic  officers  perform  their  duty,  and 
do  not  exceed  their  la^vful  authority. 

The  courts  here  simply  act,  in  the  consideration  of  facts 
coming  before  them,  upon  the  theory  which  governs  the  ac- 
tions of  all  men.  Where  the  matter  is  not  in  issue  as  a  prin- 
cipal or  evidentiary  fact,  the  court  assumes,  as  do  all  men,  that 
officers  conduct  their  business  in  the  ordinary  way,  and  per- 
form their  duties  regularly.  Similar  to  the  above  is  the  so- 
called  "presumption"  that  the  regular  course  in  business  mat- 
ters or  the  conduct  of  affairs  is  followed. 

Attempts  to  make  use  of  this  presumption  of  regularity  as 
a  substitute  for  proof  have  frequently  been  made.  They  have 
failed  for  the  reason  that,  when  the  courts  have  been  brought 
to  a  close  examination  of  its  nature,  they  have  recognized  its 
real  character,  and  have  refused  to  go  to  the  length  which  the 
unconsidered  language  of  some  of  the  decisions  would  warrant. 
Where  it  is  incumbent  upon  a  party  to  prove  facts  A,  B.  and  C 
to  support  his  case,  and  he  proves  facts  A  and  C,  but  gives  no 

dulged  in  when  the  foreign  law  imposes  a  penalty  or  works  a  for- 
feiture, as  in  the  case  of  usury." 

See,  also,  Bird  v.  Olmstead  (Tenn.  Ch.  App.)  53  S.  W.  978;  Dickey  v. 
Bank,  89  Md.  280,  43  Atl.  33. 

7  4  Robb  V.  Washington  &  Jefferson  College,  185  N.  Y.  485,  78  N.  E. 
359;  Dickey  v.  Pocomoke  City  Bank,  89  Md.  280,  43  Atl.  33;  Miller  v. 
Watson,  146  111.  523,  34  N.  E.  1111,  37  Am.  St.  Rep.  186;  Pardoe  v. 
Merritt,  75  Minn.  12,  77  N.  W.  552;  Menrer  v.  Railway  Co.,  11  S.  D. 
94,  75  N.  W.  823,  74  Am.  St.  Rep.  774;   Murphy  v.  Collins,  121  Mass.  6. 


§  60)  SPURIOUS   PRESUMPTIONS.  113 

evidence  justifying  the  inference  of  the  existence  of  fact  B, 
the  presumption  of  regularity  cannot  supply  the  lack  of  proof. '^^ 


SAME— PRESUMPTION  OF  INNOCENCE. 

60.    Every  person  will  be  presumed  to  be   innocent   until   bis 
guilt  is  sbo\im  beyond  a  reasonable   doubt. 

This  is  only  one  way  of  expressing  the  fundamental  prin- 
ciple of  our  criminal  procedure  that,  to  convict  of  crime,  the 
evidence  must  show  guilt  beyond  a  reasonable  doubt.  This 
principle  is  not  even  remotely  connected  with  the  subject  of 
inference,  and  it  is  curious  that  it  should  ever  have  been  ex- 

7  5  In  U.  S.  V.  Carr,  132  U.  S.  644,  10  Sup.  Ct.  1S2,  33  L.  Ed.  483,  the 
facts  were  as  follows:  A.  sued  the  government  for  pay  for  carrjing 
the  mails  under  a  contract  which  required  him  to  carry  it  by  a  cer- 
tain route,  stopping  at  certain  stations.  The  proof  showed  that  he 
took  a  shorter  route  on  the  return  trip,  leaving  out  stations  specified 
in  the  contract,  but  A.  claimed  that  his  omission  to  stop  at  such  sta- 
tions must  have  been  known  to  the  postmasters  at  the  termini  of  his 
route,  and  knowledge  on  the  part  of  the  government  would  be  pre- 
sumed ;  that  acquiescence  was  thus  established.  Chief  Justice  Fuller 
says  (page  653,  132  U.  S.,  and  page  18.5,  10  Sup.  Ct.  [33  L.  Ed.  483]): 
"The  department  did  not  direct,  or  affirmatively  permit,  the  con- 
tractor to  pursue  the  course  he  did;  and  if  he  could  recover,  in  whole 
or  in  part,  upon  the  ground  of  an  acquiescence  equivalent  to  assent 
in  a  certain  mode  of  dealing  with  the  subject-matter  of  the  contract, 
the  burden  was  on  him  to  show  knowledge  or  information  by  the  de- 
partment of  his  conduct  in  the  premises.  No  evidence  to  establish 
such  knowledge  or  information  having  been  adduced,  the  case  was 
made  to  rest  upon  the  presumption  that  the  postmasters  at  the  termini 
where  the  schedules  of  the  time  of  the  arrival  and  departure  of  the 
mails  were  kept,  and  registers  thereof  made  and  returned,  were  ac- 
quainted with  the  terms  of  the  contract  and  claimant's  noncompliance 
therewith,  and,  this  being  presumed,  upon  the  further  presumption 
that  they  must  have  reported  the  failure  in  performance  of  their  duty 
to  the  department."  Adopting  the  language  of  Mr.  Justice  Strong  in 
U.  S.  V.  Ross,  92  U.  S.  281,  284,  23  L.  Ed.  707,  Chief  Justice  Fuller  then 
continues :  "The  presumption  that  public  officers  have  done  their 
duty,  like  the  presumption  of  innocence,  is  undoubtedly  a  legal  pre- 
sumption, but  it  does  not  supply  proof  of  a  substantive  fact.  *  *  * 
Nowhere  is  the  presumption  held  to  be  a  substitute  for  proof  of  an  in- 
dependent and  material  fact."  See,  also,  Hilton  v.  Bender,  69  N.  Y. 
75.    For  further  instances  of  the  application  of  this  presumption,  see 

m'kelv.ev.(2d  ED.)— 8 


114  PRESUMPTIONS.  (Ch.  5 

pressed  in  the  form  of  a  presumption.^'  It  is  only  a  question 
of  proof,  which  the  poHcy  of  our  law  has  settled  in  a  certain 
way — one  way  in  civil,  another  in  criminal,  cases.  What  this 
policy  rests  upon  it  is  not  material  here  to  inquire.  That  there 
is  no  presumption  of  innocence,  and  that  the  so-called  rule  has 
absolutely  no  effect  on  the  evidence,  prima  facie  or  otherwise, 
may  be  easily  seen  by  the  following  illustration :  M.  dies,  and 
leaves  a  legacy  to  A.,  provided,  at  the  time  of  M.'s  decease, 
A.  shall  have  lived  a  life  innocent  of  all  crime.  M.'s  executor, 
X.,  fails  to  pay  the  legacy.  A,  sues  X.,  and  alleges  that  he 
was  at  M.'s  death  innocent  of  all  crime.  X.  denies  this  allega- 
tion. Innocence  would  here  become  a  fact  in  issue  material 
to  A.'s  case,  and  he  would  have  to  prove  it  the  same  as  any 
other  fact.     There  is  no  presumption  which  would  help  him. 


SAME— PRESUMPTION   OF    SURVIVORSHIP. 

61.  In  the  case  of  turo  or  more  persons  lost  at  sea,  tliere  is 
no  presumption  that  one  survived  the  other,  or  that 
there  was  a  survivor,  or  that  both  died  at  the  same 
time.  Either  fact,  if  material,  must  be  proved  by  the 
party  alleging  it,    in  the   ordinary  Avay. 

The  question  of  survivorship  is  one  which  has  been  made 
the  subject  of  several  alleged  presumptions.  It  has  been  a 
misuse  of  language,  however, — a  roundabout  way  of  saying 
that  a  person  who  alleges  a  fact  must  prove  it  by  a  prepon- 
derance of  evidence,  or  it  will  be  found  against  him.  If  it  is 
material  to  the  case  of  A.  to  show  that  R.  survived  S.,  this 
must  be  proved  in  the  usual  way ;  and,  if  it  is  not  so  proved, 
the  case  will  result  as  though  both  died  at  the  same  time,  but 
not  because  there  is  any  presumption  in  the  matter.  When  it 
is  said  that  "the  parties  must  be  presumed  to  have  died  at  the 

Union  Cont.  Lifo  Ins.  Co.  v.  Woods,  11  Ind.  App.  335,  39  N.  E.  205 ; 
Ivy  V.  Yancey,  120  Mo.  501,  31  S.  W.  937. 

Ts  A  striking  example  of  the  confusion  into  which  the  mind  may  be 
led  by  the  use  of  the  language  of  presumption  in  the  discussion  of  the 
question  of  proof  of  guilt  is  found  in  Hemingway  v.  State,  68  Miss. 
371,  417,  418,  8  South.  317.  See,  also,  Morchead  v.  State,  34  Ohio  St. 
212 ;   Brewer  v.  Bowersox,  92  Md.  567,  48  Atl.  1060. 


§  61)  SPURIOUS   PRESUMPTIONS.  115 

same  time,"  ^"^  all  that  is  meant  is  that,  as  the  fact  is  incapable 
of  proof,  the  one  upon  whom  the  onus  lies  fails ;  and  persons 
thus  perishing  will  be  treated  as  having  died  at  the  same  time, 
for  the  purpose  of  disposing  of  their  property.'^® 

7  7  Sir  Herbert  Jenner,  in  Satterthwaite  v.  Powell,  1  Curt.  Ecc.  705. 

7  8  Taylor  v.  Diplock,  2  Phillim.  Ecc.  261;  In  re  Goods  of  Selwyn,  3 
Hagg.  Ecc.  748;  Newell  v.  Nichols  (1878)  75  N.  Y.  78,  31  Am.  Rep.  424. 
This  case  was  as  follows:  M.  died  in  1870.  By  her  will,  she  left  her 
property  in  separate  trusts. — one  for  her  daughter,  one  for  her  son, 
and  one  for  her  husband.  The  principal  of  the  first  two  funds  was  to 
go  on  the  death  of  the  beneficiary  to  the  heirs  of  his  or  her  body,  or, 
failing  such  heirs,  to  any  testamentary  appointee  of  such  beneficiary, 
and,  if  no  such  appointment,  then  to  heirs  of  the  body  of  the  testa- 
trix, and,  if  no  such  heirs,  then  to  A.  The  principal  of  the  third  fund, 
upon  the  husband's  death,  was  to  go  to  the  heirs  of  the  body  of  the 
testatrix  then  living,  and,  failing  such  heirs,  to  A.  M.'s  husband,  two 
children,  and  mother  survived  her,  but  in  1875  were  lost  at  sea,  by 
the  sinking  of  a  ship.  A.  claimed  the  estate,  as  in  default  of  heirs  of 
the  body  of  the  children  or  of  M.,  the  testatrix,  or  of  testamentary  ap- 
pointment by  the  children.  The  question  of  exact  time  of  death  of  the 
persons  lost  at  sea  thus  became  material.  The  court  say :  "Is  there 
a  presumption  that  they  died  at  the  same  time,  or  that  either  person 
survived  the  others,  or  that  there  was  a  survivor,  without  defining 
which?  There  is  no  legal  presumption,  which  courts  are  authorized 
to  act  upon,  that  there  is  a  survivor,  any  more  than  that  there  was  a 
particular  survivor.  It  is  not  claimed  that  there  is  any  legal  presump- 
tion that  the  children  died  at  the  same  time.  Indeed,  it  may  be  con- 
ceded that  it  is  unlikely  that  they  ceased  to  breathe  at  precisely  the 
same  instant,  and,  as  a  physical  fact,  it  may  perhaps  be  inferred  that 
they  did  not.  But  this  does  not  come  up  to  the  standard  of  proof. 
The  rule  is  that  the  law  will  indulge  in  no  presumption  on  the  sub- 
ject. It  will  not  raise  a  presumption  by  balancing  probabilities,  ei- 
ther that  there  was  a  survivor,  or  who  he  was."  The  result  of  the 
doctrine  that  there  is  no  presumption  as  to  survivorship  is  that  prop- 
erty rights  are  disposed  of  upon  the  theory  that  the  several  parties 
died  at  the  same  time,  unless  survivorship,  if  asserted,  is  supported  by 
sufficient  affirmative  proof.  See  Coye  v.  Leach,  8  Mete.  (Mass.)  371,  41 
Am.  Dec.  518;  Johnson  v.  Merithew,  80  Me.  Ill,  13  Atl.  132,  6  Am.  St, 
Rep.  162;  Sanders  v.  Simcich,  65  Cal.  51,  2  Pac.  741.  The  English 
doctrine  recognizes  no  presumption  as  to  survivorship,  and  also  re- 
fuses to  dispose  of  property  on  theoiy  of  death  at  the  same  time.  A 
curious  case  arose  in  Wing  v.  Angrave,  8  H.  L.  Cas.  182.  A.  claimed? 
property  under  the  will  of  M.,  in  default  of  the  exercise  of  a  power  of 
appointment  by  X.,  the  daughter  to  whom  the  property  had  been  de- 
vised for  life  with  power  to  appoint.  X.  had  made  a  will  giving  the 
property  to  her  husband,  Y.,  subject  to  interests  given  to  her  children, 


116  PRESUMPTIONS.  (Ch.  5 

SAME— PRESUMPTION  OF  KNOViTI^EDGE   OF  THE  LAW. 

62.  Every  one  is  presniiied  to  kno^v  the  law. 

Policy  in  the  administration  of  the  law  dictates  that  it  should 
be  applied  to  every  one,  and  no  member  of  the  community 
should  escape  legal  responsibility  for  his  acts.  "Ignorance  of 
the  law  excuses  no  one"  is  the  correct  way  of  expressing  what 
is  often  incorrectly  expressed  as  a  presumption  in  the  words, 
"Everyone  will  be  presumed  to  know  the  law."  ''' 

CONFLICTING   PRESUMPTIONS. 

63.  There  is,  strictly  speaking,  no  such  thing  as  "conflicting 

presumptions."      "Conflicting   inferences"    is    what    is 
meant  by  the  phrase. 

Much  has  been  said  in  the  cases  of  conflicting  presump- 
tions.^"    What  is    neant  is  conflicting  inferences,  which  are 

and.  in  case  her  husband  should  die  in  her  lifetime,  then  to  W.  Y. 
had  also  made  a  will  ;riviug  his  property  to  his  wife,  and,  in  case  she 
should  die  in  his  lifetime,  then  to  W.,  in  trust  for  his  children,  and,  in 
case  all  should  die  under  age,  then  to  W.  absolutely.  X.  and  Y.  and 
their  children  were  lost  at  sea,  being  all  swept  away  by  one  wave.  W. 
claimed  the  property  upon  the  theory  that  he  was  both  the  appointee 
of  the  wife  and  the  legatee  of  the  husband,  and,  whichever  one  was 
the  survivor,  he  would  be  entitled.  It  was  held  that,  in  order  to  hold 
the  property,  W.  must  prove  some  state  of  facts  under  which  he  would 
be  entitled;  that  there  was  no  presumption,  in  the  absence  of  proof 
as  to  survivorship,  that  the  parties  died  at  the  same  time;  and  that 
as  W.  had  not  proved  that  X.  survived  Y.,  nor  that  Y.  survived  X., 
nor  that  both  died  at  the  same  time,  in  any  one  of  which  events  he 
would  have  been  entitled,  the  property  would  be  disposed  of  under 
the  father's  will,  as  though  X.  and  Y.  were  entirely  out  of  the  case, 
and  the  power  of  appointment  had  not  been  executed. 

78  3  Harv.  Law  Rev.  165.  In  Martindale  v.  Fallcner,  2  C.  B.  719, 
Maule,  J.,  says :  "There  is  no  presumption  in  this  country  that  every 
person  knows  the  law.  It  would  be  contrary  to  common  sense  and 
reason  If  it  were  so."    U.  S.  v.  Anthony,  11  Blatchf.  (U.  S.)  200,  Fed. 

80  Rex  V.  Inhabitants  of  Twyning,  2  P.arn.  &  Aid.  38G ;  Sliarp  v. 
Johnson,  22  Ark.  79 ;  Town  of  Greensborough  v.  Town  of  Underbill, 
12  Vt.  604. 


§  63)  CONFLICTING    PRESUMPTIONS.  117 

present  in  every  case  where  there  is  evidence  introduced  on 
both  sides  of  a  question  in  issue.  If  we  take  the  term  "pre- 
sumption" as  meaning  a  rule  fixing  the  prima  facie  efifect  of 
certain  facts,  then,  when  rebutting  evidence  is  introduced,  the 
presumption,  as  such,  has  no  further  force.  The  question  be- 
comes one  simply  between  conflicting  proof  and  the  inferences 
to  be  drawn  therefrom.  When  the  court  discusses  conflicting 
presumptions,  it,  therefore,  talks  of  conflicting  inferences. ^^ 

Cas.  No.  14.459;  Winehart  v.  State,  6  Ind.  30.  Where  the  fact  of 
whether  a  person  knows  the  law  is  in  issue,  there  Is  no  presumption 
which  supplies  the  place  of  proof.  Reg.  v.  Mayor,  etc.,  of  Tewkesbury, 
L.  R.  3  Q.  B.  629;  Black  v.  Ward,  27  Mich.  191,  200,  15  Am.  Rep.  162. 
81  State  V.  Plym  (1890)  43  Minn.  385,  45  N.  W.  848.  On  the  trial  of 
X.  for  bigamy,  it  is  shown  that  X.  left  Sweden,  and  came  to  America, 
in  1884,  leaving  a  wife  and  children;  that  she  sent  word  to  him  in 
August,  1887;  that  he  was  married  in  1889  to  another  woman.  Is 
there  any  presumption  that  the  first  wife  was  living  at  the  time  of  the 
second  marriage?  Do  the  so-called  presumptions  of  innocence  and  of 
continuance  of  life  conflict,  and  which  is  the  stronger?  Michael,  J., 
says:  "Neither  is  it  true  that  there  is  any  presumption  of  law  one 
way  or  the  other  as  to  the  continuance  of  life.  It  is  a  mere  presump- 
tion of  fact,  which  is  subject  to  be  controlled  by  facts  and  circumstan- 
ces, and  consequently  by  no  means  of  equal  strength  at  all  times  and 
under  all  circumstances;  as,  perhaps,  more  correctly  speaking,  there 
Is  no  rigid  presumption  one  way  or  the  other.  The  evidence  that  a 
person  was  living  at  a  particular  time  is  but  one  of  the  facts  to  be  con- 
sidered in  determining  the  question  whether  he  was  living  at  any  fu- 
ture given  time,  and  which  is  to  be  considered  with  reference  to  ac- 
companying circumstances,  such  as  the  length  of  time  intervening,  the 
age  and  health  of  the  person,  and  the  like.  Its  weight  as  evidence 
will  be  affected  by  any  circumstances  affecting  the  probability  of  the 
continuance  of  life,  or  rendering  it  probable  that  death  had  occurred." 
See,  also.  Rex  v.  Inhabitants  of  Harbome,  2  Adol.  &  E.  540 ;  Reg.  v. 
Willshlre,  6  Q.  B.  Div.  366;  Leach  v.  Hall,  95  Iowa,  611,  64  N.  W.  790; 
State  V.  Pike,  49  N.  H.  399,  444,  6  Am.  Rep.  533. 


118  ADMISSIONS.  (Ch.  6 

CHAPTER  VI. 
ADMISSIONS. 

64.  Admissions  Defined. 

65.  Direct  and  Indirect  Admissions. 

66.  Admissibility. 

67-68.  Admissions  of   Parties. 

69-76.  Admissions  of   Tliird  Persons. 

77-79.  Admissions  Pending  Negotiations  for  Compromise. 

80.  Civil  and  Criminal  Cases. 

81.  Proof  of  Admissions. 

82.  Effect  of  Admissions. 

ADMISSIONS  DEFINED. 

64.  An  admission  may  be  defined  as  a  statement  or  act  which 
amounts  to  the  affirmance  of  some  fact  material  to  the 
issue,  ivhere  such  affirmance  operates,  at  the  time  of 
trial,  against  the  interest  of  the  party  responsible 
for  it. 

Formal  Admissions  as  Distinguished  from  Evidential. 

There  are  two  kinds  of  admissions,  and  it  will  be  well  to 
distinguish  them  clearly  at  the  start.  There  is,  first,  the  formal 
admission,  which  may  be  said  to  be  addressed  to  the  court, 
and  may  be  made  by  a  party  in  his  pleading-,  by  stipulation,  or 
by  statement  in  open  court.  Secondly,  there  is  the  statement 
of  a  fact  at  some  previous  time  inconsistent  with  a  fact  at- 
tempted to  be  established  at  the  time  of  trial;  a  statement 
which,  when  brought  into  the  case,  comes  in  as  a  piece  of  evi- 
dence, direct  or  circumstantial,  from  which  the  court  and  jury 
may  draw  an  inference  as  to  the  truth  of  the  fact  in  issue. 

As  to  the  formal  admissions,  little  need  be  said.  They 
simply  fix  the  relation  between  the  parties  as  to  the  facts. 
They  help  to  define  the  issues  concerning  which  evidence  is  to 
be  heard,  but  they  are  not  in  themselves  evidence. 

Admissions  of  this  character  bind  the  parties  conclusively 
throughout  the  entire  litigation,  unless  it  be,  upon  application, 


§  65)  DIRECT   AND    INDIRECT   ADMISSIONS.  119 

the  court  relieve  the  party  from  the  effect  of  such  admission.^ 
A  distinction  must  be  made  between  those  formal  admis- 
sions, addressed  to  the  court,  and  which  operate  solely  to  ex- 
cuse proof  and  thus  limit  the  issues,  and  statements  and  alle- 
gations contained  in  pleadings  or  other  papers  used  in  the 
progress  of  the  case,  which  are  of  an  evidential  nature  and  are 
,  used  in  that  character  to  prove  some  facts  or  fact. 

Pleadings  may  contain  both  kinds  of  admissions.  So  far 
as  the  first  is  concerned,  the  pleading  need  not  be  introduced 
in  evidence  in  order  that  it  may  be  availed  of.  It  is  a  part  of 
the  record,  and  as  such  the  court  will  use  it  to  help  in  defining 
the  issues  which  are  to  be  the  subject  of  proof. 

As  to  the  second,  it  seems  that  the  pleading  or  other  paper 
containing  it  should  be  introduced,  and  that,  unless  so  intro- 
duced, it  cannot  be  used  as  a  part  of  the  evidence. 


DIRECT   AND   INDIRECT   ADMISSIONS. 

65.  Evidential  admissions  may  be  eitlier  direct  statements  as 
to  the  facts  in  issue  or  tliey  may  be  statements  of  oth- 
er facts  or  conduct  from  vrhich  the  facts  in  issue  may 
be   inferred. 

As  to  the  second  kind  of  admissions,  those  which  may  be 
called  evidential  admissions,  they  may  be  of  many  different 
kinds  with  respect  to  form  and  character;  but  in  general  they 
fall  into  two  classes :  First,  direct  statements  of  main  facts 
in  issue;  second,  statements  of  facts  from  which  inferences 
may  be  drawn  as  to  main  facts  in  issue.  Both  kinds  of  state- 
ments may  be  called  evidential  admissions,  because  of  the  fact 

1  Stemmler  v.  Mayor,  etc.,  179  N.  Y.  473,  72  N.  E.  581.  In  this  case 
the  records  show  that  upon  the  trial  the  following  admission  was  en- 
tered on  the  record:  "It  is  admitted  that  during  the  time  John  A. 
Stemmler  was  ousted  from  office  the  defendant  paid  the  salary  to  Jo- 
seph McGuire."  Upon  a  second  appeal  the  defendant  sought  to  sho\f 
that  there  was  no  evidence  as  to  such  payment.  The  court  said:  "A" 
stipulation  made  by  the  parties,  or  their  attorneys,  with  respect  to 
the  facts  in  a  case,  for  the  purpose  of  evidence,  is  general,  and  not 
limited  in  respect  of  time  or  occasion,  but  stands  in  the  case  for  all 
purposes  until  the  litigation  Is  ended,  unless  the  court,  upon  applica- 
tion, shall  relieve  either  or  both  of  the  parties  from  its  operation." 


120  ADMISSIONS.  (Ch.  6 

that  they  are  introduced  as  evidence.  It  will  be  readily  seen, 
however,  that  they  may  differ  very  much  in  conclusiveness ; 
that  in  the  latter  case  they  are  likely  to  be  in  the  nature  of 
circumstantial  evidence,  as  to  which  there  is  always  much  un- 
certainty, while  in  the  former  case  they  are  likely  in  themselves 
to  carry  conviction. 

As  to  the  former  there  is  nothing  to  be  said,  except  that,  to 
be  available,  the  statement  which  constitutes  the  admission 
must  be  proved  in  the  ordinary  way.  The  form  in  which  the 
admission  is  made  is  immaterial,  so  that  it  amounts  to  a  state- 
ment of  fact,  and  is  not  a  statement  of  opinion  or  a  promise.^ 

The  proof  of  a  direct  admission  is  usually  by  the  introduc- 
tion of  testimony,  oral  or  written,  as  to  the  language  constitut- 
ing the  admission.^ 

2  \yhere,  in  a  suit  for  damages  arising  from  action  taken  by  a 
board  of  health,  it  was  sought  to  show  that  the  plaintiff  suffered  no 
damage,  and  to  that  end  there  was  introduced  as  an  admission  a 
statement  made  by  the  plaintiff,  at  the  time  of  the  action  of  the  board 
of  health,  to  the  effect  that  he  would  claim  no  damages,  it  was  held 
that  the  language  did  not  constitute  an  admission.  Driscoll  v.  City 
of  Taunton,  160  Mass.  486,  36  N.  E.  495.  And  an  irresponsible  ex- 
pression of  opinion  will  not  be  treated  as  an  admission,  as  where  a 
legatee  under  a  will,  a  boy  of  17,  who  had  been  sitting  up  all  night 
with  testator,  had  said  testator  was  crazy  and  did  not  know  what  he 
was  doing,  and  that  "he  was  drinking  and  crazy."  Gessell  v.  Baugher, 
60  Atl.  481.  100  Md.  677.  See,  also,  Aschenbach  v.  Keene,  46  Misc. 
Rep.  600,  92  N.  Y.  Supp.  764. 

3  The  statement  constituting  the  admission  may  be  oral  or  written. 
Its  form  is  immaterial.  So,  also,  are  the  place  and  circumstances  at- 
tending its  making.  It  may  have  been  heard  by  witness  over  a  tele- 
phone. Wolfe  V.  Railway  Co.,  97  Mo.  473,  11  S.  W.  49,  3  L.  R.  A.  539, 
10  Am.  St.  Rep.  331.  It  has  even  been  held  that  one  who  overheard 
one  side  of  a  conversation  by  telephone,  which  was  indicative  of  what 
was  said  at  the  other  end,  may  give  the  side  overheard,  in  evidence. 
To  render  it  admissible,  however,  the  fact  of  the  party  against  whom 
it  is  sought  to  be  used  being  actually  at  the  other  end,  and  engaged  in 
the  conversation,  must  be  shown.  Miles  v.  Andrews,  153  111.  2G2,  3S 
N.  E.  644;  Swing  v.  Walker,  27  Pa.  Super.  Ct.  366,  373.  Compare 
Godair  v.  Ham  Natl.  Bank,  225  111.  572,  SO  N.  E.  407;  also  Kansas 
City  Star  Co.  v.  Standard  Warehouse  (Mo.  App.)  99  S.  W.  765.  In  the 
latter  case  the  court  went  to  the  extreme  limit  and  held  that  a  person 
called  to  the  'phone  by  one  who  purports  to  be  X.  could  give  the  con- 
versation as  though  with  X.  A  deposition  of  a  party  taken  before 
trial  may  be  proved  as  an  admission,  even  though  it  cannot  be  used 


§  65)  DIRECT   AND   INDIRECT   ADMISSIONS.  121 

An  illustration  of  an  admission  of  the  latter  kind,  to  wit, 
the  indirect  admission,  may  be  found  in  the  following: 

A.  sues  X.  for  damage  done  by  X.'s  cattle  to  A.'s  crop,  and 
for  the  purpose  of  showing  an  admission  on  the  part  of  X. 
that  his  cattle  had  caused  the  damage  A,  offers  the  testimony 
of  a  witness  to  the  effect  that  X.  had  told  witness  that  he  had 
offered  A.  a  certain  amount  of  money  to  cover  the  damage. 
From  such  statement  an  inference  naturally  arises  that  X.'s 
cattle  did  do  the  damage.* 

That  the  defendant  in  the  illustration  just  used  made  the 
statement  that  he  had  offered  the  plaintiff  something  to  cover 
his  damage,  while  not  equivalent  to  a  direct  admission  that  the 
cattle  caused  the  damage,  is,  nevertheless,  very  nearly  so.  An 
illustration  of  an  admission  somewhat  further  removed  in  char- 
acter from  a  direct  admission  is  found  in  a  case  where  A.  sued 
X.  for  the  loss  of  his  sheep,  charging  that  X.'s  dog  had  killed 
them,  and  as  proof  of  the  fact  of  the  killing,  which  was  the 
main  fact  in  issue,  offered  evidence  that  X.  had  killed  his  dog, 
and  at  the  time  remarked  that  it  would  kill  no  more  sheep. ^ 

as  a  deposition  on  account  of  the  presence  of  the  party  in  court.  Gut- 
terson  v.  Morse,  58  N.  H.  165.  Statements  made  by  a  witness  in  a 
prior  proceeding,  to  which  a  party  who  was  also  examined  as  a  wit- 
ness in  said  prior  proceeding  assented,  may  be  proved  as  an  admission 
against  the  latter  in  a  subsequent  suit.  Beeckman  v.  Montgomery,  14 
N.  J.  Eq.  106.  80  Am.  Dee.  229.  The  admission  may  be  in  the  shape 
of  testimony  given  by  a  party  to  the  action  on  a  former  trial,  Woods 
V.  Gevecke,  28  Iowa,  561;  Lorenzana  v.  Camarillo,  45  Cal.  125:  or 
statements  on  printed  circulars  sent  out  by  a  corporation  of  which 
defendant  was  in  control,  Putnam  v.  Gunning,  162  Mass.  552,  39  N.  E. 
347;  statements  in  a  pleading  in  the  same  action,  Ferris  v.  Hard,  135 
N.  Y.  354,  32  N.  E.  129;  statements  in  a  pleading  in  another  action. 
Printup  V.  Patton,  91  Ga.  422,  18  S.  E.  311;  Johnson  v.  Russell,  144 
Mass.  409,  11  N.  E.  670.  The  plea  of  guilty  to  a  criminal  charge  may 
be  used  as  an  admission  in  a  civil  action.  Jones  v.  Cooper,  97  Iowa, 
735,  65  N.  W.  1000;  Hendle  v.  Geiler  (Del.  Super.  Ct.)  50  Atl.  632. 
Statements  contained  in  an  independent  and  wholly  collateral  agree- 
ment may  be  used  as  an  admission.  House  v.  Cessna,  6  Tex.  Civ. 
App.  7,  24  S.  W.  9G2.  The  fact  that  the  agreement  is  a  void  one  does 
Bot  affect  the  rule.  Morrell  v.  Cawley,  17  Abb.  Prac.  (N.  T.)  76; 
Hickey  v.  Hinsdale,  12  Mich.  99;  Reis  v.  Hellman,  25  Ohio  St.  180. 
So,  also,  statements  in  a  tax  inventory.  Hubbard  v.  Moore,  67  Vt. 
532,  32  Atl.  4G5. 

4  Story  V.  Nidiffer,  146  Cal.  549,  SO  Pac.  692. 

B  Anderson  v.  Halverson,  126  Iowa,  125,  101  N.  W.  781. 


122  ADMISSIONS.  (Ch.  6 

A  step  further  from  the  direct  admission  is  the  statement 
which  by  omission  becomes  evidence  of  some  fact.  For  ex- 
ample, A.  sued  X.  on  a  note,  claiming  ownership  thereof.  X., 
to  prove  the  plaintiff  did  not  own  the  note,  offered  in  evidence 
the  statement  made  by  plaintiff  and  filed  with  the  tax  office, 
purporting  to  show  the  plaintiff's  personal  property;  said 
statement  containing  no  mention  of  the  note  sued  upon.® 

When  we  go  still  further  from  the  direct  admission,  we 
finally  reach  the  field  of  admissions  by  conduct,  or  in  what  are 
frequently  spoken  of  as  implied  admissions,  and  which  are 
simply  circumstantial  evidence.  In  an  action  by  A.  against 
X.  to  recover  damages  to  A.'s  hack  by  reason  of  its  use  by  X. 
during  a  smallpox  epidemic  to  carry  persons  to  and  from  the 
hospital,  it  appeared  that  A.  had  rendered  a  final  bill  for  the 
use  of  the  hack  and  had  never  made  anv  claim  for  damasre  to 
it.  A.'s  failure  to  make  a  claim  for  damages  at  a  time  when 
he  would  naturally  do  so,  to  wit,  when  he  was  sending  a  final 
bill  for  its  use,  is  a  circumstance  in  the  nature  of  an  admission 
that  there  was  no  damage.'^ 

An  implied  admission  is  proved  by  introducing  testimony  as 
to  such  conduct  as  shows  an  acknowledgment  of  the  truth  of 
the  fact  in  question.^  There  are  very  few  cases  of  implied 
admissions,  strictly  speaking.  In  most  instances,  where  ac- 
tions or  conduct  are  introduced  as  bearing  upon  the  truth  of  a 
fact,  it  is  as  circumstantial  proof  of  the  fact  itself,  and  not  as 
proof  of  an  admission.  The  term  "implied  admission"  is  often 
used  to  designate  proof  of  this  sort,  but  really  the  element  of 
admission  is  frequently  entirely  wanting. 

8  Fudge  V.  Marqnell,  164  Ind.  447,  72  N.  E.  565.  73  N.  E.  895. 

7  Nichols  V.  Cit:i'  of  New  Britain,  77  Conn.  695,  60  Atl.  655. 

8  Proctor  V,  Railroad  Co.,  154  Mass.  251,  2.54,  28  N.  E.  13.  Where 
suit  was  brought  hy  a  husband  against  his  wife's  brother  for  aliena- 
tion of  the  wife's  affections,  plaintiff  introduced  evidence  showing 
that  the  wife  gave  as  her  reason  for  leaving  that  her  brother  would 
not  let  her  alone,  that  this  statement  was  made  in  the  presence  ot 
the  brother,  and  that  he  did  not  deny  it.  His  silence  under  the  cir- 
cumstances was  held  to  be  in  the  nature  of  an  admission.  Bathke 
V.  Krassin.  82  Minn.  226,  84  N.  W.  796.  Also  the  omission  in  a  tax  re- 
turn of  a  certain  item  of  personal  security  operates  as  an  admission 
that  the  party  did  not  own  the  security  at  the  time  of  the  return. 
Fudge  V.  Marquell,  164  Ind.  447,  72  N.  E.  .565,  73  N.  E.  895. 


§  65)  DIRECT   AND   INDIRECT   ADMISSIONS.  123 

Suppose  that  the  fact  in  issue  be  whether  X.,  the  defendant, 
called  A.  a  thief,  and  it  is  proved  by  the  testimony  of ^  M.,  a 
witness,  that,  in  a  conversation  between  X.,  P.,  and  himself; 
he,  M.,  said  to  P.,  "X.  called  A.  a  thief,"  and  X.  said  nothing.. 
but  laughed.  Here  it  is  a  fair  inference  from  X.'s  conduct 
that  he  approves  what  M.  says,  and  virtually  acknowledges, 
though  not  in  words,  that  he  used  the  language  imputed  to 
him.  It  may  be  said  that  X.'s  conduct  leads  also  to  the  direct 
inference  that  he  called  A.  a  thief,  as  well  as  to  the  inference 
that  he  admits  he  used  such  language.  But  it  seldom  happens 
that,  when  conduct  is  reUed  on  as  proof  of  an  admission,  it 
does  not  also  serve  as  circumstantial  proof  of  the  fact  to  a 
greater  or  less  degree.^ 

Evidential  Force  of  Admissions. 

Direct  evidence  of  a  fact  may  come  from  the  parties  to  the 
action  or  from  outsiders.     If  A.  and  X.  are  parties  to  the 
action,  and  M.  is  a  third  party,  and  a  fact  in  issue  is  whether 
X.  called  A.  a  thief,  A  may  testify  that  X.  did  call  him  a  thief. 
M.  may  so  testify,  or  X.  may  take  the  witness  stand,  and  state 
that  such  is  the  fact.     Each  testifies  from  his  own  knowledge, 
having  heard  the  words  said.     Each  is  giving  direct  evidence 
of  the  fact.     The  evidence  of  X.,  however,  has  either  a  very 
much  stronger  probative  force,  or  something  more  than  a  mere 
probative  force.     At  all  events,  the  statement  by  X.  that  he 
called  A.  a  thief  convinces  the  mind  that  the  matter  is  settled, 
and  that  the  case  must  be  decided  against  X.     X.'s  statement 
as  to  the  fact  is  an  admission,  and  it  has  both  a  stronger  pro- 
bative force,  and  also  something  beyond  a  probative   force; 
the  former  because  it  comes  from  one  whose  interest  would 
be  to  state  the  contrary,  and  the  latter  because,  if  he  against 
whom  a  fact  is  charged  admits  it,  he  cannot  complain  of  in- 
justice if  he  is  treated  as  though  it  were  true.     In  the  example 
cited,  the  admission  was  a  direct  admission  in  court  by  X. 
Suppose,  however,  X.,  on  the  witness  stand,  denies  that  he 
called  A.  a  thief;    but  P.,  another  witness,  testifies  that  he 

8  Proctor  V.  Railroad  Co.,  154  Mass.  251,  254,  24  N.  E.  13;  Morris  v. 
Norton,  75  Fed.  912.  21  C.  C.  A.  553.  Mr.  Justice  Taft  in  this  case 
discusses  at  some  lengtli  the  effect  of  admissions  by  silence  or  acqui- 
escence. See.  also.  In  re  Hulett's  Estate,  66  Minn.  327,  69  N.  W.  31, 
34  L.  R.  A.  384,  61  Am.  St.  Rep.  419. 


124  ADMISSIONS.  (Ch.  6 

heard  M.  say  that  X.  called  A.  a  thief,  and  also  heard  X.,  on 
another  occasion,  say  that  he  had  called  A.  a  thief;  what  is 
the  result?  P.'s  testimony  as  to  what  M.  said  is  inadmissible, 
because  it  is  hearsay.^"  P.'s  testimony  as  to  what  he  heard 
X.  say  is,  however,  admissible.  It  is,  also,  hearsay.  If  it  be 
the  lack  of  the  sanctity  of  the  oath  which  renders  M.'s  mere 
statement  of  a  fact  inadmissible  when  repeated  in  court  by 
P.,  then,  perhaps,  the  guaranty  of  truth  which  lies  in  the  state- 
ment, being  against  interest  when  made  by  X.,  is  sufificient  to 
make  up  for  this.  It  is  likely,  however,  that  the  probative  or 
evidentiary  quality  of  the  statement  is  secondary  to  the  other 
element  mentioned,  which  may  be  called  the  "estoppel  ele- 
ment," and  that  this  is  the  real  reason  why  it  is  admissible. ^^ 
In  fact,  the  "against  interest"  element,  so  far  as  it  relates 
to  the  time  of  the  making  of  the  admission  (this  element  is,  of 
course,  always  present  as  relating  to  the  time  of  trial ;  other- 
wise, there  would  be  no  attempt  by.  an  adversary  to  introduce 
evidence  of  the  admission),  is  sometimes  wholly  absent,  and 
the  admission  may  have  been  made  in  the  interest  of  the  party 
at  the  time  it  was  made.^^ 


ADMISSIBILITY. 


66.  Admissions  of  parties  to  the  action  are  alivays  admissi- 
ble. In  certain  cases  and  under  certain  circumstan- 
ces, admissions  of  persons  other  than  parties  are  ad- 
missible. 

Admissions  made  by  parties  to  the  action  may  be  proved  in 
evidence   for  the  reasons   which   have  been   somewhat   fully 

10  Post,  p.  253. 

Ill  Greenl.  Ev.  §  169  et  seq. 

12  Niphols  V.  City  of  Now  T5ritain.  77  Conn.  R05.  m  Atl.  0.'.^.  well 
lllustratos  this.  Ante,  p.  122.  See,  also,  Fiidare  v.  Marquoll.  104  liul. 
447,  72  N.  E.  565,  73  N.  E.  895 ;  Wigmore,  Ev.  §  1048. 


§  66)  ADMISSIBILITY.  125 

Stated.*'  One  cannot  with  impunity  take  a  position  in  the 
trial  of  an  action  inconsistent  with  the  previous  position  taken 
by  him,  and  accordingly  any  acts  or  statements  made  by  him 
which  show  a  different  attitude  or  position  from  that  which 
he  has  taken  in  the  action  are  admissible.  As  has  already  been ' 
stated,  it  is  difficult  to  say  just  how  far  the  doctrine  of  estoppel 
,is  responsible  for  this  rule  as  to  admissions  of  parties.  In  the 
case  of  admissions  of  persons  not  parties  to  the  suit,  the  doc- 
trine of  estoppel  plays  no  part ;  but  admissibility  of  statements 
rests  solely  upon  the  fact  that  they  have  been  made  against 
the  interests  of  the  party  making  them,  and  that  that  interest 
is  identified  with  the  interest  of  the  party  to  the  suit  against 
whom  they  are  sought  to  be  used. 

Identity  of  Interest  the  Test  of  Admissibility. 

It  is  sometimes  a  question  of  some  difficulty  to  determine 
just  what  will  be  sufficient  identity  of  interest  to  render  such 
statements  admissible.  The  cases  have  mainly  turned  upon 
this  point.  Certain  rules  have  become  established  as  to  iden- 
tity of  interest,  and  may  be  easily  applied.  Many  other  cases 
arise  which  cannot  be  brought  under  any  certain  rule,  but  must 
depend  largely  upon  the  facts  as  to  identity  of  interest,  as  they 
are  brought  out  at  the  trial.  In  either  case  the  authority 
should  clearly  appear  before  the  statement  of  one  should  be 
considered  binding  as  against  another.  Bare  statements  by  an 
agent,  unaccompanied  by  any  acts,  and  not  in  connection  with 
the  doing  of  his  principal's  business,  would,  perhaps,  never 
bind  the  principal,  unless  it  were  shown  the  principal  directed 
the  particular  statement  to  be  made.  In  most  cases  the  state- 
ments of  an  agent  which  are  admissible  are  connected  with 
acts  in  such  a  way  as  to  be  admissible  upon  another  ground, 
to  wit,  as  a  part  of  the  res  gestae. 

ISA  statement,  to  be  receivable  as  an  admission,  must  be  traced  to 
the  party.  While  it  is  not  necessary  that  the  witness  testifying  to 
the  admission  should  have  known  the  name  of  the  party,  it  must  ap- 
pear satisfactorily  from  the  evidence  introduced  that  the  person 
whom  witness  heard  make  the  statement  was  the  party.  Laidlaw  v. 
Sage,  2  App.  Div.  375,  37  N.  Y.  Supp.  770. 


126  ADMISSIONS.  (Ch.  6 


SAMZ^-ADMISSIONS    OF    PARTIES. 

67.    Tlie  admissions  of  a  party  are  not  open  to  objections  to 
wliicli  other  parol  evidence  may  be  open. 

For  example,  the  admission  of  a  party  is  not  subject  to  the 
"best  evidence"  rule.  In  an  action  by  A.  against  X.  for  prose- 
cuting a  suit  contrary  to  an  agreement,  to  prove  the  prosecu- 
tion of  the  suit  by  X.,  A.  offered  admissions  by  X.  of  the  ob- 
taining of  the  judgment  and  issue  of  execution.  They  were 
objected  to,  on  the  ground  that  they  were  not  the  best  evi- 
dence, and  that  a  certified  copy  of  the  judgment  should  be 
produced.  Fletcher,  J.,  says :  "This  is  a  case  of  the  admis- 
sion of  a  party,  and  the  admission  of  a  party  stands  on  dis- 
tinct grounds.  The  admissions  of  a  party  are  not  open  to  the 
same  objection  which  belongs  to  parol  evidence  from  other 
sources.  A  party's  own  statements  and  admissions  are,  in  all 
cases,  admissible  in  evidence  against  him,  though  such  state- 
ments and  admissions  may  involve  what  must  necessarily  be 
contained  in  some  writing,  deed,  or  record.  Thus  the  state- 
ments of  a  party  that  certain  land  had  been  conveyed  might 
be  admitted,  though  the  conveyance  must  be  by  deed  recorded. 
The  general  principle  as  to  the  production  of  written  evidence 
as  the  best  evidence  does  not  apply  to  the  admissions  of  par- 
ties, as  what  a  party  admits  against  himself  may  reasonably 
be  taken  to  be  true."  ^* 


68.    Statements  contained  in  a  pleadinj;  may  in  general  be  used 
against  the  party  putting  in  the  pleading. 

The  principles  under  which  statements  contained  in  a  plead- 
ing or  other  formal  presentation  made  in  the  progress  of  a  ju- 
dicial proceeding  are  admissible  are  no  different  from  those 
which  govern  the  use  in  evidence  of  admissions  generally. 

The  first  requisite  is  that  the  statement  shall  be  proved  to 
be  that  of  the  party  against  whom  it  is  sought  to  be  used  as  an 
admission.     This  is  commonly  no  difficult  matter,  as  the  plead- 

14  Smith  V.  Palmer  (1850)  6  Cush.  (M.ass.)  513.  521.  See,  also,  Slat- 
terie  v.  Pooley,  G  Mees.  &  W.  GG4 ;  Loomis  v.  Wadbams,  8  Gray 
(Mass.)  557. 


§  68)  ADMISSIBILITY.  127 

ing  is  usually  either  signed  or  sworn  to  by  the  party,  or  is  of 
such  a  formal  character  as  to  imply  its  being  put  forth  with 
his  knowledge  and  by  his  direction. 

Where  pleadings  or  other  statements  in  a  suit  are  of  so  in- 
formal a  character  as  not  to  involve  knowledge  of  their  sub- 
stance on  the  part  of  the  person  on  whose  behalf  they  are  put 
in,  then  they  must  be  connected  by  proof  with  the  party  be- 
fore they  can  be  used.^^ 

It  sometimes  happens  that  a  pleading  will  contain  a  formal 
admission  of  a  fact  alleged  by  the  opposite  party  for  the  pur- 
pose of  a  plea  or  defense  of  justification.  Such  an  admission, 
being  for  a  particular  purpose,  cannot  be  availed  of  against 
the  party  making  it,  unless  he  has  the  opportunity  to  accom- 
plish such  purpose.  Such  a  case  is  found  where,  in  an  action 
for  slander,  the  defendant  alleges  in  his  answer  both  the  de- 
fense of  general  denial  and  of  justification,  and  then,  upon 
the  trial,  being  compelled  to  elect  between  the  two  defenses, 
chooses  that  of  general  denial.  As  the  defendant  will  under 
such  circumstances  be  unable  to  prove  the  truth  of  the  slan- 
derous words,  his  admission  in  the  answer  of  the  speaking  of 
them,  made  solely  for  the  purposes  of  the  defense,  cannot  be 
used  against  him.^® 

Admissions  contained  in  a  pleading,  which  have  been  sub- 
sequently displaced  by  an  amended  pleading,  have  been  dif- 
ferently treated  in  different  jurisdictions.  Upon  principle 
there  would  seem  to  be  no  good  reason  why  a  fact  stated  by 
a  party  in  an  original  pleading  should  not  be  used  in  evidence 
against  him.  As  in  the  case  of  any  other  admission,  he  would 
always  have  the  opportunity  to  explain  or  qualify  such  state- 
ment of  fact,  if  it  had  been  made  mistakenly  or  inadvertently, 
and  is  not  in  accordance  with  the  facts  as  he  in  the  later  plead- 
ing alleges  them.  This  is  the  view  taken  in  several  jurisdic- 
tions.^^    But  in  other  jurisdictions  it  has  been  held  that  the 

15  Dennie  v.  Williams,  135  Mass.  28;  Burns  v.  Maltby,  43  Minn.  161, 
45  N.  W.  3 ;  Combs  v.  Hodge,  21  How.  (U.  S.)  397,  16  L.  Ed.  115 ;  In- 
ternational &  G.  N.  R.  Co.  V.  Mullilien,  10  Tex.  Civ.  App.  663,  32  S. 
W.  152. 

16  Lane  v.  Bryant.  100  Ky.  138.  37  S.  W.  584.  36  L.  R.  A.  709. 

17  Ryan  v.  Button  (Tex.  Civ.  App.)  38  S.  W.  546;  Ludwig  v.  Black- 
shere,  102  Iowa,  366,  71  N.  W.  356. 


128  ADMISSIONS.  (Ch.  6 

original  pleading  no  longer  binds  the  party  and  that  it  cannot 
be  used  against  him  as  an  admission.^^ 

The  statements  contained  in  a  pleading  may  be  such  as  sug- 
gest or  require  an  inference  as  to  some  material  fact  of  the 
case  of  the  opponent,  or  they  may  be  direct  admissions  of  such 
material  facts.  In  either  case,  to  make  use  of  them  before  the 
jury,  it  is  customary  to  introduce  the  pleading,  or  the  part  of 
it,  sought  to  be  used  in  evidence.  A  pleading  is  always  in  the 
case  as  a  part  of  the  record,  but  it  has  an  additional  evidential 
character,  if  introduced  in  evidence.^* 

Statements  in  the  nature  of  admissions  contained  in  a  re- 
quest to  charge  are  equally  available  as  proof.^° 

SAME— ADMISSIONS    OF    THIRD    PERSONS. 

69.  The  admissions  of  a  third  person,  xirlien  material,  are  ad- 

missible— 

(a)  Wlien  the  interest  of  such  person  is  identified  with  that 

of  a  party  to  the  suit. 

(b)  'When   the  admissions  ivere  made  actually  or  construc- 

tively by  the  authority  of  a  party  to  the  suit. 

70.  The  question  of  identity  of  interest  is  really  one  of  sub- 

stantive law^,  and  does  not  belong  to  the  subject  of  evi- 
dence. 

Whether  one  person  stands  in  such  a  relation  to  another  as 
to  make  his  statements  and  acts  binding  upon  him  is  nothing 
with  which  evidence  concerns  itself,  except  in  an  incidental 
way.  If  such  a  relation  does  exist,  then  the  law  of  evidence 
will  determine  what  acts  and  what  statements  may  be  received, 
and  what  will  be  excluded.  The  existence  of  the  relation, 
however,  is  determined  by  some  rule  in  the  law  of  real  proper- 
ty, bills  and  notes,  persons,  the  criminal  law,  or  whatever 
branch  the  particular  subject  under  consideration  may  belong 
to.  A  few  of  the  cases  where  it  has  been  held  that  there  was 
sufficient  identity  of  interest  to  permit  the  use  of  admissions 

18  So.  Pac.  Ck).  V.  Wellington  (Tex.  Civ.  App.)  36  S.  W.  1114;  Miles 
V.  Woodward,  115  Cal.  308,  46  Pac.  1076. 

10  Palmer  Transfer  Co.  v.  Eaves,  85  S.  W.  750,  27  Ky.  Law  Rep. 
573. 

20  Pitcalm  V.  Philip  Hess  Co.,  113  F.  492,  51  C.  C.  A.  323. 


§  71)  ADMISSIBILITY.  129 

made  by  a  person  not  a  party  to  the  suit  against  a  party  to 
the  suit  may  be  given.  The  identity  of  interest  referred  to 
may  relate  either  to  the  subject-matter  of  the  suit,  or  may  be 
dependent  upon  interest  outside  of  the  suit.  If  the  question 
be  as  to  the  title  to  a  piece  of  property,  there  may  be  an  identi- 
ty of  interest  in  the  property  itself.  For  example,  a  previous 
.owner,  who  has  held  title  to  the  same  land,  is  considered  to 
have  had  such  an  interest  in  it  that  statements  made  by  him 
respecting  the  title  are  admissible  against  a  subsequent  grantee. 
Here,  to  be  sure,  there  is  no  identity  of  interest  at  the  time  of 
the  suit,  and  there  is  very  little  reason  for  the  principle  which 
allows  such  statements  to  be  introduced.  There  is,  of  course, 
a  certain  guaranty  for  their  truth,  in  the  fact  that  a  man  is  not 
likely  to  depreciate  his  own  title ;  but,  were  the  law  not  well 
settled,  it  is  doubtful  if  the  courts  would  now  establish  it  in 
the  same  way.^^ 


71.  A  former  owner  of  land  is  so  identified  in  interest  with  a 
subsequent  owmer,  holding;  under  the  same  title,  that 
his  admissions  respecting  the  title,  made  ■while  in  pos- 
session and  vested  with  title,  are  receivable  in  evi- 
dence. 

This  rule  is  based  on  the  theory  that  the  self-interest  in- 
volved in  the  ownership  of  title  is  a  sufficient  guaranty  for  the 
truthfulness  of  statements  against  interest  made  by  an  owner.^^ 

21  In  Paige  v.  Cagwin  (1843)  7  Hill  (N.  Y.)  361,  it  is  said:  "I  ad- 
mit that  there  is  no  solid  distinction  in  principle  between  the  cases 
referred  to  by  the  learned  judge,  but  I  by  no  meaus  admit  that  the 
rule  as  applicable  to  personal  estate  should  be  altered.  On  the  con- 
trary, it  appears  to  be  an  anomaly  in  our  law  if,  by  the  rules  of  evi- 
dence, titles  to  real  estate  can  be  made  to  depend  upon  the  mere  dec- 
laration of  a  prior  owner,  when  evei-y  contract  for  the  sale  of  land  is 
required  to  be  in  writing,  and  title  can  only  be  conveyed  by  deed.  There 
would,  in  my  judgment,  be  much  more  propriety  in  excluding  such 
declarations  as  affecting  real  estate  than  in  admitting  them  as  to  per- 
sonal property.  But  I  do  not  concede  that  such  declarations  are  now 
admissible  to  affect  the  titles  to  land,  although  they  may  be  admitted 
to  explain  the  character  of  possession."  See,  also,  Emmet  v.  Perry, 
100  Me.  139,  60  Atl.  872 ;  Dibble  v.  Cole,  102  App.  Div.  229,  92  N.  Y. 
Supp.  938. 

22  Long  V.  Long,  19  111.  App.  383.  The  line  of  admissibility  of  declara- 
tions of  this  sort  is  clearly  drawn  by  the  court  in  this  case.    The  con- 

m'kelv.ev.(2d  ED.)— 9 


130  ADMISSIONS.  (Ch.  6 

It  is  imperative  that  the  statements  be  made  while  the  prior 
owner  is  vested  with  the  title.  If  made  after  the  title  has  been 
disposed  of,  the  guaranty  of  truthfulness  is  lacking,  and  it  is 
universally  held  such  statements  are  inadmissible.^^  The  ad- 
missibility of  statements  of  this  sort  is  not  afifected  by  the 
fact  that  the  person  making  them  is  alive  and  in  court.^*  This 
is  not  one  of  those  cases  where  the  admissibility  is  dependent 
on  the  decease  or  inaccessibility  of  the  witness.  It  quite  fre- 
quently happens  that  the  person  whose  declaration  is  offered 
is  dead,  and  from  this  circumstance  has  sometimes  arisen  a 
misconception  of  the  rule,  the  statements  being  classed  with 
those  under  the  exception  to  the  hearsay  rule  relating  to 
declarations  of  deceased  persons.  They  more  properly  belong 
under  the  class  of  admissions.^' 

test  was  between  the  heirs  of  the  grantor  and  a  grantee.  The  dec- 
larations were  made  after  the  grantor  had  parted  with  title,  and  were 
introduced  on  behalf  of  the  grantee.  The  court  say  (page  389) : 
"While  the  statements  of  a  grantor  made  after  conveyance  are  in- 
admissible as  against  the  grantee,  they  would  be  proper  evidence 
against  the  heir  of  the  grantor  claiming  adversely  to  the  grantee." 
Spaulding  v.  Hallenbeck,  35  N.  Y.  204;  Gratz  v.  Beates,  45  Pa.  495: 
Baucum  v.  George,  65  Ala.  259. 

2  3  Fall  V.  Fall,  100  Me.  98,  60  Atl.  718;  Fyffe  v.  Fyffe,  106  111.  646; 
Stribling  v.  Brougher,  79  Ind.  328;  Monroe  v.  Napier,  52  Ga.  385; 
Dorr  V.  School  Dist.  No.  26,  40  Ark.  237 ;  Matteson  v.  Hartmann,  91 
Wis.  485,  65  N.  W.  58 ;  Bullock  v.  Smith,  72  Tex.  545,  10  S.  W.  687. 
The  fact  that  the  grantor,  at  the  time  of  making  the  admission,  owned 
adjoining  land  held  by  same  title  as  the  lands  conveyed  to  the  gran- 
tee, will  not  make  it  admissible  against  the  grantee,  Hills  v.  Ludwig, 
46  Ohio  St.  373,  24  N.  E.  596 ;  nor  will  the  fact  that  the  grantor  re- 
tained possession  of  the  real  estate,  Emmons  v.  Barton,  109  Cal.  662. 
42  Pac.  303. 

24  In  an  action  by  A.  against  X.  for  trespass  for  breaking  and  en- 
tering his  close,  called  "Scorhill,"  X.  called,  to  prove  that  Scorhill 
was  a  part  of  common  lauds,  the  son  of  M.  M.  formerly  owned  the 
estate  now  held  by  the  plaintiff ;  was  alive  and  in  court.  The  son 
testified  to  admissions  of  his  father  that  he  had  no  right  in  Scorhill. 
The  court  say  (Lord  Denman) :     "We  think  they  are  receivable  on 

2  0  Paige  v.  Cagwin,  supra;  Butler  v.  Mlllett,  47  Me.  492;  Sargeant 
V.  Sargeant,  18  Vt.  371 ;  Owings  v.  Low,  5  Gill  &  J.  (Md.)  134,  145 ; 
Many  v.  Jagger,  1  Blatchf.  (U.  S.)  372,  Fed.  Cas.  No.  9,055 ;  Benson  v. 
Lundy.  52  Iowa,  265,  3  N.  W.  149;  Randegger  v.  Ehrhardt,  51  111. 
101 ;  Pier  v.  Duff,  63  Pa.  .59:  Garrahy  v.  Green,  32  Tex.  202.  But  see 
Smith  V.  Boyer,  29  Neb.  76,  45  N.  W.  265,  26  Am.  St.  Rep.  373. 


§  72)  ADMISSIBILITY.  131 

A  mortgagor  in  possession  is  held  to  be  sufficiently  identi- 
fied with  a  subsequent  owner  who  holds  title  under  a  foreclosure 
of  the  mortgage  to  render  statements  made  by  him  as  to  the 
title  admissible,  although  the  position  of  the  subsequent  owner 
is  that  of  a  holder  by  a  paramount  title.-**  In  the  case  of  a 
corporation  holding  title,  it  is  held  that  admissions  of  the  presi- 
dent are  subject  to  the  rule,  and  may  be  used  against  a  sub- 
sequent owner.  ^'^ 

A  widow  in  possession  of  land  under  her  dower  right  can- 
not by  her  admission  affect  the  title  of  the  children  or  a  pur- 
chaser claiming  under  them.^^ 

It  is  quite  generally  held  that  an  admission  by  a  predecessor 
in  title  is  not  receivable  in  evidence  to  contradict  a  good  record 
title.29 


72.  The  prevailing  doctrine  in  respect  to  personal  property  is 
that  declarations  by  a  prior  ovimer  \irhile  in  possession, 
vested  ivitli  title,  are  admissible. 

The  courts  generally  have  made  no  distinction  between  real 
and  personal  property  in  the  application  of  the  doctrine  of 

the  ground  of  identity  of  interest.  The  fact  of  his  being  alive  at 
the  time  of  the  trial,  when,  perhaps,  his  memory  of  facts  was  impair- 
ed, and  when  his  interest  was  not  the  same,  does  not,  in  our  opinion, 
affect  the  admissibility  of  those  declarations  which  he  formerly  made 
on  the  subject  of  his  own  rights."  Woolway  v.  Rowe,  1  Adol.  &  E. 
114. 

26  Flagg  V.  Mason,  141  Mass.  64,  6  N.  E.  702;  Dawson  v.  Town  of 
Orange,  78  Conn.  96,  61  Atl.  101.  Contra,  Merkle  v.  Beidleman,  165 
N.  Y.  21,  58  N.  E.  757. 

In  Walsh  v.  Wheelwright,  96  Me.  174,  52  Atl.  649,  the  declarations 
of  a  tenant,  admitting  that  the  plaintiff  was  the  true  owner,  were 
received  in  evidence  in  an  action  against  one  claiming  through  the 
tenant's  landlord.  The  landlord  had  foreclosed  a  mortgage,  but  had 
taken  possession  only  through  the  tenant.  While  the  declarations 
were  admitted,  on  the  theory  of  identity  between  the  tenant  and  the 
defendant,  may  they  not  also  have  been  admissible  as  original  evi- 
dence, showing  the  character  of  the  possession?  See  note  on  this 
case,  in  16  Harvard  Law  Rev.  216. 

2  7  Holmes  v.  Turner's  Falls  Co.,  150  Mass.  535,  544,  23  N.  E.  305,  6 
L.  R.  A.  283. 

2  8  Maraman  v.  Troutman  (Ky.)  71  S.  W.  861. 

29Gibney  v.  Marehay,  34  N.  Y.  301;  Phillips  v.  Laughlin,  99  Me. 
26.  58  Atl.  64,  105  Am.  St.  Rep.  253. 


132  ADMISSIONS.  (Ch.  6 

identity  of  interest.  Where  title  to  chattels  or  choses  in  ac- 
tion is  in  question,  declarations  in  disparagement  thereof  by  a 
prior  owner  while  holding  title  have  usually  been  admitted;  ^° 
but,  where  title  has  been  parted  with,  they  will  not  be  re- 
ceived. ^^  Even  where  the  assignor  is  a  nominal  plaintiff,  it 
is  held  his  statements  made  after  he  transferred  his  interest 
to  the  assignee  are  inadmissible.^^ 

In  New  York  state  the  courts  have  refused  to  extend  the 
doctrine  to  personal  property,  and  exclude  such  statements 
whether  made  before  or  after  transfer  of  title,^^  except  as 
against  an  assignee  for  the  benefit  of  creditors,  where  they 
are  admitted.^*  Statements  made  by  the  vendor,  or  in  fact 
any  other  person,  in  actual  possession,  as  to  the  character  of 
his  possession,  are  admissible ;  ^^  but  here  we  get  into  the  field 
of  res  gestae,  which  will  be  treated  of  elsewhere. 

73.  A  prior  holder  of  a  bill  or  note  is  not  regarded  as  so  iden- 
tified in  interest  Avith  a  subsequent  holder  as  to  render 
his  declarations  admissible  in  an  action  against  such 
subsequent  holder. 

The  disposition  has  been  rather  to  limit  than  to  extend  the 
doctrine  of  admissibility  of  statements  on  the  ground  of  iden- 
tity of  interest.  Even  in  jurisdictions  where  such  statements 
are  received  in  respect  to  chattels,  the  rule  is  not  extended  to 
negotiable  paper,  and  the  general  rule  in  respect  to  negotiable 
paper  excludes  this  class  of  evidence.^' 

30  Gullett  V.  Otey,  19  III.  App.  182 ;  Benson  v.  Lnndv.  .52  Iowa.  265, 
3  N.  W.  149;  Piedmont  Sav.  Bank  v.  Levy,  138  N.  C.  274,  50  S.  E.  657. 

31  Pariy  v.  Libbey,  166  Mass.  112,  44  N.  E.  124;  Pier  v.  Duff,  63 
Pa,  59 ;  Thornton  v.  Tandy,  39  Tex.  544.  In  the  case  of  fraudulent 
assignments,  it  has  in  some  jurisdictions  been  held  that  declarations 
made  by  the  assignee  after  the  assignment  will  be  admitted  as  corrob- 
oratory of  other  evidence  to  prove  the  fraud.  Smith  v.  Boyer,  29 
Neb.  76.  45  N.  W.  265,  26  Am.  St.  Rep.  373. 

32  Butler  V.  Millett,  47  Me.  402;  Sargeant  v.  Sargeant,  18  Vt  371. 

83  Flannery  v.  Van  Tassel,  127  N.  Y.  631,  27  N.  E.  393. 

84  Humphrey  v.  Smith,  7  App.  Div.  442,  39  N.  Y.  Supp.  1055. 

88  Smith  V.  Boyer,  29  Neb.  76,  45  N.  W.  265,  26  Am.  St.  Rep.  373. 

88  Dodge  V.  Freedman's  Sav.  &  Trust  Co.,  93  U.  S.  379,  23  L.  Ed. 
920 ;  Shober  v.  Jack,  3  Mont.  351 ;  Paige  v.  Cagwin  (1843)  7  Hill  (N. 
Y.)  361 ;    Fitch  v.  Chapman,  10  Conn.  8. 


§§  74^75)  ADMISSIBILTT.  133 

The  parties  may,  by  reason  of  their  relation,  as  where  the 
one  stands  in  a  representative  capacity  to  the  other,  be  so 
identified  as  to  render  the  declarations  of  the  prior  holder  good 
against  the  representative ;  but  the  mere  fact  of  the  one  being 
a  predecessor  of  the  other  is  not  sufficient.^ ^ 


■74.  In  some  jurisdictions  it  has  been  held  that  admissions 
made  by  one  of  twro  persons  jointly  liable  are  receiv- 
able  against   the    other. 

75.  It  is  conceived  that  neither  joint  liability  nor  joint  in- 
terest in  the  result  of  the  suit  or  in  the  subject-mat- 
ter of  it  is  sufficient  in  itself  to  render  admissions 
made  by  one  binding  upon  another. 

3  7  In  Paige  v.  Cagwin,  supra,  A.  brought  an  action  against  X.  on 
a  promissory  note  which  he  had  received  from  M.  after  it  became  due. 
X.  offered  a  certain  declaration  made  by  M.  that  there  was  nothing 
due  on  the  note.     Lott,  Senator,  says :     "I  do  not  deem  it  necessaiy 
to  refer  particularly  to  the  other  cases  cited  by  the  plaintiff  in  error. 
It  will  be  found  on  an  examination  of  most  of  them  that  they  do  not 
sustain  the  doctrine  that  the  declarations  of  a  prior  holder  of  a  note 
or  vendor  of  a  chattel  are  admissible  in  evidence  as  against  a  subse- 
quent owner,   who  acquired  title   for   a   valuable  consideration.     It 
may,  I  think,  be  laid  down  as  a  general  proposition  that  the  cases 
in  which  such  evidence  has  been  held  admissible  are  those  only  where 
the  declarations  were  made  by  a  party  really  in  interest,  or  by  one 
through  whom  the  plaintiff  claimed  as  a  privy  by  representation, 
as  in  cases  of  bankruptcy,  death,  and  others  of  a  similar  character. 
*     *    *     It  is  insisted,  however,  that  the  indorsee  of  a  note  overdue 
takes  it  subject  to  all  the  equities  existing  between  the  original  par- 
ties at  the  time  of  the  indorsement,  and  that,  if  the  admissions  made 
by  a  prior  holder  are  excluded,  then  the  other  party  is  prejudiced. 
It  is  true  that  the  note  in  such  case  is  subject  to  the  same  defense  in 
the  hands  of  the  indorsee,  as  when  it  was  in  the  hands  of  the  in- 
dorser ;    but  it  by  no  means  follows  that  the  mere  declarations  of 
such    indorser    can    affect   the   risht   of   the    indorsee.     The   means 
of  providing  a  defense  may  be  affected,  but  the  right  to  it  is  not 
impaired.     The  defense  still  exists,  but  it  must  be  established  by 
testimony,    and    not    by    mere    declarations."      In    Shober    v.    Jack 
(1879)  3  Mont.  351,  Knowles.  J.,  says:    "The  first  point  [the  admis- 
sibility of  declarations  of  the  prior  holder  of  note]  is  decided  in  the 
case  of  Dodge  v.  Freedman's  Sav.  &  Trust  Co..  93  U.  S.  379.  23  L.  Ed. 
920.     In  this  case  it  is  held  that  the  declarations  or  admissions  of 
the  indorser  or  assignor  of  a  note,  although  indorsed  or  assigned  after 
due.   as  to  the  payment  thereof,   cannot  be  introduced  in  evidence 
against  a  subsequent  owner  and  holder  thereof  in  an  action  thereon." 


134  ADMISSIONS.  (Ch.  6 

The  subject  of  the  effect  of  admissions  made  by  one  of  sev- 
eral parties  to  a  suit  similarly  situated  with  respect  to  its  sub- 
ject-matter is  one  upon  which  the  authorities  are  not  in  a  very 
satisfactory  condition.  An  idea  has  prevailed  that  a  joint 
liability  operated  to  make  the  admissions  of  any  one  of  the 
obligors  binding  upon  all.^^  Out  of  this  have  grown  decisions 
applying  the  principle  under  certain  circumstances.  But,  as 
the  idea  never  was  founded  on  any  valid  reason,  it  did  not 
spread  far  through  the  decisions;  and,  though  the  frequency 
with  which  it  has  been  pressed  as  the  ground  for  the  admis- 
sibility of  declarations  has  given  it  prominence  in  the  cases, 
it  is  a  prominence  of  denial,  rather  than  of  affirmance.  Where 
it  has  ostensibly  prevailed,  it  will  usually  be  found  that  some 
other  element  is  present  than  mere  joint  liability.^^  The  cases 
where  it  has  been  denied  application  are  legion.*" 

38  Barrick  v.  Austin,  21  Barb.  (N.  Y.)  241.  The  principle  on  which 
this  case  was  decided  was  not  followed  in  Wallis  v.  Randall,  81  N.  Y. 
164,  where  the  court  said,  in  effect,  that  agency  or  some  other  represen- 
tative relation  must  exist  in  order  to  render  the  statements  of  one 
joint  obligor  binding  upon  another.  In  Bank  of  U.  S.  v.  Lyman,  20 
Vt.  666,  Fed.  Cas.  No.  924,  language  in  support  of  the  idea  is  used,  but 
the  admissions  were  receivable  also  on  the  ground  of  agency,  and  the 
■court  so  state.  In  Tyler  v.  Ulmer,  12  Mass.  163,  A.  sued  X.,  a  sheriff, 
for  default  on  the  part  of  M.,  a  deputy  sheriff,  in  satisfying  an  execu- 
tion. To  show  the  default,  A.  offered  letters  and  statements  made  by 
M.  as  to  the  property  on  which  execution  should  have  been  levied.  It 
was  held  that  they  were  admissible  against  X.,  since  M.  was  practi- 
cally, though  not  nominally,  the  defendant,  being  the  one  ultimately 
liable  for  any  damages  recovered.  In  Dickenson  v.  Clark,  5  W.  Va. 
280,  another  case  frequently  cited  in  support  of  the  principle,  there  is 
only  a  dictum,  the  statement  being  in  fact  rejected,  because  the  joint 
interest  was  not  proved  by  outside  evidence.  See,  also,  Bacon  v. 
Green,  36  Fla.  325,  343,  18  South.  870. 

30  Wallis  v.  Randall,  81  N.  Y.  164;  Rapier  v.  Insurance  Co.,  57  Ala. 
100;  Bank  of  U.  S.  v.  Lyman,  20  Vt.  606,  Fed.  Cas.  No.  924;  Shirk  v. 
Brookfield,  77  App.  Div.  295,  79  N.  Y.  Supp.  225. 

40  Co-legatees  or  co-devisees,  though  both  i)arties  to  a  suit  in  whiclr 
the  validity  of  the  will  is  attacked,  are  not  held  to  be  so  connected 
by  jouit  interest  in  the  result  as  to  render  admissions  by  one  binding 
upon  the  other.  Shaver  v.  McCarthy.  110  Ta.  339,  348,  5  Atl.  614. 
Nor  is  the  fact  that  there  is  an  allegation  of  conspiracy  between  the 
two  legatees  sufficient,  in  the  absence  of  any  evidence  of  conspiracy, 
to  render  the  admission  of  one  binding  upon  the  other.  Wood  v.  Car- 
penter, 166  Mo.  465,  60  S.  W.  172.     Their  interests  are  several,  not 


§.§  74-75)  ADMISSIBILITY.  135 

A  principle  has  been  laid  down,  which  seems  founded  in 
common  sense,  to  the  effect  that,  when  the  right  of  a  complain- 
ant as  against  one  defendant  is  only  prevented  from  being 
complete  by  some  question  between  the  plaintiff  and  the  second 
defendant,  the  admissions  of  the  second  defendant  as  to  such 
question  will  be  received.*^ 

It  has  been  cited  as  the  principle  upon  which  the  bar  of  the 
statute  of  limitations  is  removed  as  against  several  joint  ob- 
ligors ;  *^  but  there  is  something  besides  a  rule  of  evidence  as  to 

joint.  In  Kentucky  admissions  of  this  liind  are  admitted  as  against 
the  devisee  making  them,  and  as  having  the  effect  of  circumstantial 
evidence  against  co-devisees.  Milton  v.  Hunter,  13  Bush  (Ky.)  163. 
And  see  Gibson  v.  Sutton  (Ky.)  70  S.  W.  188.  Copartners,  after  the 
dissolution  of  the  firm,  are  not  so  identified  in  intei'est  with  respect 
to  partnership  rights  and  liabilities  that  the  admissions  of  one  will 
bind  the  other.  This  is  apparently  on  the  ground  that  the  represen- 
tative or  agency  element  is  lacking.  Baker  v.  Stackpoole,  9  Cow.  (N. 
Y.)  420,  433,  18  Am.  Dec.  508;  Hogg  v.  Orgill,  34  Pa.  344;  Winslow  v, 
Newlan,  45  111.  145;  Rose  v.  Gunn,  79  Ala.  411,  414;  First  Nat.  Bank 
V.  Strait,  65  Minn.  162,  67  N.  W.  987;  Hamilton  v.  Summers,  12  B. 
Mon.  (Ky.)  11,  14,  .54  Am.  Dec.  509;  Conery  v.  Hayes,  19  La.  Ann.  325; 
Dowzelot  V.  Rawlings,  .58  Mo.  75;  Peoria  Scrap  Iron  Co.  v.  Cohen  & 
Co.,  113  111.  App.  30 ;  Naul  v.  Naul.  75  App.  Div.  292,  78  N.  Y.  Supp. 
101 ;  Belding  v.  Archer,  131  N.  C.  287,  42  S.  E.  800.  The  rule  is  contra 
in  several  states.  It  is  based  on  the  theory  that  "there  is  a  com- 
munity of  interest  in  relation  to  all  partnership  transactions,  which 
will  continue  so  long  as  they  remain  unadjusted,  and  from  the  liabil- 
ities of  which  neither  partner  can  escape."  Parker  v.  Merrill,  6 
Greenl.  (Me.)  41,  43.  To  the  same  effect  are  Gay  v.  Bowen,  8  Mete. 
(Mass.)  100;  Rich  v.  Flanders,  39  N.  H.  304.  338;  Loomis  v.  Loomis, 
26  Vt.  198.  Statements  by  one  shareowner  in  a  vessel  as  to  the  use 
of  lumber,  the  value  of  which  was  sued  for.  are  not  admissible  against 
another  shareowner.    Dean  v.  Ross,  105  Cal.  227,  38  Pac.  912. 

■11  Langley  v.  Andrews,  142  Ala.  665,  38  South.  238.  In  this  case 
the  answer  of  the  second  defendant  was  used  to  prove  title  in  plaintiff 
to  a  mortgage  which  had  been  assigned  to  him  by  the  said  defendant. 

The  same  principle,  applied  in  the  converse,  is  found  in  Cornelissen 
V.  Ort,  132  Mich.  294,  93  N.  W.  617,  where,  in  a  suit  against  three  at- 
torneys for  negligence  in  failing  to  take  an  appeal,  the  statement  of 
one  of  them,  in  an  afiidavit  upon  a  motion  for  extension  of  time  to- 
perfect  the  appeal,  it  was  held,  could  be  used  in  favor  of  the  others; 
the  statement  being  to  the  effect  that  the  neglect  was  wholly  his  fault, 
and  there  being  also  an  afiidavit  of  plaintiff  on  the  same  motion  that 
he  had  left  the  matter  entirely  to  such  attorney. 

4  2  Bissell  V.  Adams,  35  Conn.  299. 


136  ADMISSIONS.  (Ch.  6 

the  use  of  admissions  which  is  involved  here.  There  is  a  doc- 
trine of  substantive  law,  either  common  or  statutory.  That 
such  is  the  fact  is  seen  in  cases  where,  through  collusion  or 
fraud  of  some  sort,  it  is  inequitable  that  the  rule  should  be 
applied.  The  courts  in  such  cases  do  not  hesitate  to  deny  any 
effect  to  the  admission,  even  though  received  in  evidence.*^ 

Where  one  not  a  party  to  the  record  is  the  real  party  in  in- 
terest, his  admissions  are  held  receivable;  but  this  is  not  an 
application  of  the  idea  as  to  joint  obligors  or  persons  jointly 
interested.  It  is  rather  on  the  theory  that  "the  party  in  in- 
terest cannot  be  permitted  to  assert  successfully,  through  the 
intervention  of  an  agent  and  trustee,  a  claim  which  he  would 
be  estopped  from  asserting  if  the  suit  were  brought  in  his  own 
name."  **  The  joint  interest  between  the  assured  and  the 
beneficiary  under  a  policy  of  insurance  is  not  held  sufficient 
to  make  the  admissions  of  the  one  binding  upon  the  other.*^ 

Nor  is  the  relationship  between  sister  and  brother,  where 
the  brother  has  died  and  the  sister  is  his  heir,  sufficient  to  jus- 
tify receiving  the  admissions  of  the  sister  made  prior  to  the 

4  3  Coit  V.  Tracy,  8  Coun.  268,  277,  20  Am.  Dec.  110.  Here  the  court, 
not  to  seem  to  repudiate  the  rule  that  the  admissions  of  one  joint 
obligor  are  receivable  in  evidence  against  another,  drew  a  peculiar 
distinction  between  receiving  statements  in  evidence  and  giving  full 
legal  effect  to  them  for  all  purposes,  saying  that  the  latter  will  not  be 
done  if  it  will  work  an  injustice.  In  New  York,  in  the  absence  of  any 
element  of  agency,  the  doctrine  is  that  an  admission  of  one  joint 
debtor  will  not  bind  the  other  so  as  to  remove  the  bar  of  the  statute. 
Van  Keuren  v.  Parmelee,  2  N.  Y.  523,  525,  51  Am.  Dec.  322 ;  Murdock 
V.  Waterman,  145  N.  Y.  55,  63,  39  N.  E.  829,  27  L.  R.  A.  418. 

44  Kendall  v.  Lawrence,  22  Pick.  (Mass.)  540;  Bigelow  v,  Foss,  5£^ 
Me.  162,  in  which  admissions  of  a  beneficiary  were  received  against 
the  trustee  suing.  The  fact  as  to  the  interest  must  clearly  appear  be- 
fore the  admissions  will  be  received.  May  v.  Taylor,  6  Man.  &  G.  261? 
Tyler  v.  Ulmer,  12  Mass.  163.  in  which  admissions  of  a  deputy  were 
allowed  against  the  sheriff  being  sued;  Pike  v.  Wiggin,  8  N.  H.  3.')6, 
where  admissions  of  a  creditor  were  allowed  against  a  sheriff  suing  a 
person  in  whose  hands  attached  property  was  left. 

4  5  Goodwin  v.  Society.  97  Iowa,  226,  66  N.  W.  157,  32  L.  R.  A.  473, 
59  Am.  St.  Rep.  411;  Thies  v.  Insurance  Co.,  13  Tex.  Civ.  App.  280. 
35  S.  W.  676.  It  was  held,  however,  that,  where  the  assured  retained 
the  power  to  change  bendiciary,  there  his  admission  of  forfeiture  was 
receivable  against  the  beneficiary.  Fidelity  Mut.  Life  Ass'n  v.  Winn,. 
96  Tonn.  224,  33  S.  W.  1045. 


§  76)  ADMISSIBILITY.  137 

death  of  the  brother  as  to  his  interest  in  a  partnership.*'  Nor 
does  the  fact  that  a  husband  and  wife  are  joined  as  defend- 
ants in  an  action  against  them  both  make  the  declarations  of 
the  wife  binding  as  admissions  against  the  husband,  where  she 
is  not  shown  to  have  been  authorized  by  him  to  make  them.^'^ 
In  this  particular  case  it  appeared  that  the  wife  was  im- 
properly joined ;  but  it  does  not  seem  that  there  would  be 
any  different  conclusion  reached,  had  both  properly  been  de- 
fendants. 

76.  When  the  relation  of  principal  and  agent  is  sho^vn  to  ex- 
ist, the  statements  of  the  agent  made  ivithin  the  scope 
of  his  authority  are  admissible  against  the  principal. 

The  admission  of  an  agent,  if  made  concerning  his  princi- 
pal's business  and  by  authority  of  his  principal,  is  nothing  more 
nor  less  than  the  admission  of  the  principal ;  and  the  fact  of 
its  being  spoken  by  the  agent  does  not  change  it  any  more  than 
if  the  principal  had  employed  the  instrumentality  of  a  pencil 
and  paper.  Statements  made  under  such  circumstances  are 
admissible  against  the  principal.  They  are  in  legal  effect  the 
statements  of  the  principal,  and  therefore  their  admissibility 
rests  upon  the  rule  as  to  admissions  of  parties  to  the  suit.*^ 

Dependent  upon  this  principle  of  agency  are  the  rules  with 
respect  to  the  admissions  of  a  husband  as  against  the  wife,  or 
vice  versa;  *^    by  attorneys  as  against  clients;^"    by  partners 

46  Rapp  V.  Becker,  4  Ohio  Cir.  Ct.  Rep.  (N.  S.)  139 

4  7  Horan  v.  Byrnes,  70  N.  H.  531,  49  Atl.  569. 

4  8  The  question  as  to  when  such  a  relation  exists  as  to  render  ad- 
missions binding  on  the  ground  of  agency  is  often  one  of  considerable 
difficulty.  It  is  not,  however,  a  question  of  evidence.  As  to  the  ad- 
missions of  agents  generally,  see  West  Jersey  Traction  Co.  v.  Cam- 
den Horse  R.  Co.,  53  N.  J.  Eq.  163,  163,  35  Atl.  49;  Idaho  Forwarding 
Co.  V.  Firemen's  Fund  Ins.  Co.,  8  Utah,  41,  29  Fac.  S2G.  17  L.  R.  A. 
586. 

40  Riley  V.  Suydam,  4  Barb.  (N.  T.)  222;  Harless  v.  Harless,  144 
Ind.  196,  41  N.  E.  592;  Walker  v.  Insurance  Co.,  1  Mo.  App.  Rep.  478. 
Neither  part  payment  nor  a  new  acknowledgment  of  indebtedness 
made  by  a  wife  will  operate  against  the  husband  to  revive  a  claim 
barred  by  the  statute  of  limitations,  unless  agency  sufficient  for  this 
pnrnosse  is  shown.    Butler  v.  Price,  115  Mass.  578.    The  admissions  of 

•"•"  See  note  50  on  following  page. 


138  ADMISSIONS.  (Cll.  6 

as  against  partners;"  by  trustee  as  against  beneficiary ;  ^- 
by   employe   as    against    employer;  ^^     by    corporate    officers 

the  wife  were  excluded  as  against  her  husband  in  Rose  v.  Chapman, 
44  Mich.  312,  6  N.  W.  681,  because  "the  purpose  here  was  to  use  her 
admissions  against  her  husband  as  binding  him,  although  not  con- 
fined to  acts  of  agency";  also  in  Goodrich  v.  Tracy,  43  Vt.  314,  5  Am. 
Rep.  281.  And,  where  husband  and  wife  sued  jointly  for  value  of 
services  of  wife,  the  admissions  of  the  wife  were  not  allowed  as 
against  the  husband,  it  being  held  that  the  cause  of  action  belonged 
to  him.    Jordan  v.  Hubbard,  26  Ala.  433. 

5  0  An  admission  made  by  an  attorney  as  evidence  has  no  greater 
force  than  one  made  by  any  other  duly  authorized  agent.  Where 
made  in  the  course  of  the  trial,  it  has  more  than  an  evidentiary  force, 
and  is  conclusive  upon  the  party.  See  Marsh  v.  Mitchell,  26  N.  J. 
Eq.  497,  501,  and  Haas  v.  Society,  80  111.  248.  Nor  does  the  fact  that 
it  is  made  after  the  trial  make  any  diiference.  The  Harry,  9  Ben.  (U. 
S.)  524,  Fed.  Cas.  No.  6,147.  But  when  made  outside  of  the  record,  and 
introduced  as  evidence,  it  has  only  a  prima  facie  effect.  The  distinction 
was  recognized  in  Perry  v.  Manufacturing  Co.,  40  Conn,  313,  317.  The 
admission  of  an  attorney  is  not  receivable  unless  made  with  reference 
to  a  matter  in  which  he  had  authority  to  represent  his  client. 
Fletcher  v.  Railway  Co.,  109  Mich.  363,  67  N.  W.  330;  Pickert  v.  Hair, 
146  Mass.  1,  5,  15  N.  E.  79;    Treadway  v.  Railroad  Co.,  40  Iowa,  526. 

Where  a  town  had  paid  damages  for  injuries  and  brought  action 
against  a  street  railway  company  for  indemnity,  evidence  was  offered 
that  an  attorney  who  had  been  employed  to  look  after  the  railway 
company's  interests  had  said,  during  the  progress  of  the  action  against 
the  town  and  after  final  judgment,  in  response  to  an  inquiry  as  to 
what  should  be  done:  "Pay  it,  and  then  I  will  talk  to  you  later  about 
it."  It  was  held  inadmissible  as  beyond  the  attorney's  authority. 
Town  of  Waterbury  v.  Waterbury  Traction  Co.,  74  Conn.  1.52,  50  Atl. 
3.  But  when  so  made  it  is  admissible.  Loomls  v.  Railroad  Co.,  159 
Mass.  39,  44,  34  N.  E.  82.  The  incidental  statement  by  an  attorney  of 
a  fact  as  he  expects  to  prove  it,  made  in  his  opening,  is  not  an  admis- 
sion which  can  be  relied  on  by  the  other  side.  Lake  Erie  &  W.  R. 
Co.  V.  Rooker,  13  Ind.  App.  600.  41  N.  E.  470.  But  see.  Oscanyan  v. 
Arms  Co.,  103  U.  S.  261,  26  L.  Ed.  539,  where  verdict  was  directed  in 
the  o])ening  statement  of  counsel. 

51  Grunenberg  v.  Smith,  58  111.  App.  281. 

52Knorr  v.  Raymond,  73  Ga.  749;  Northrup  v.  Sullivan,  47  La. 
Ann.  715,  17  South.  259;  Helm  v.  Steele,  22  Tenn.  472.  The  real  test 
of  the  admissibility  is  that  of  authority.  The  circumstances  under 
which  the  admission  is  made  usually  show  this.  If  they  do  not,  the 
statement  of  the  trustee  is  not  admissible  merely  because  he  is  trus- 
tee. Eitelgeorge  v.  Mut.  House  Bldg.  Ass'n,  69  Mo.  52-  Bragg  v 
Geddes,  93  111.  .39. 

53  In  a  suit  to  recover  damages  for  the  loss  of  cattle  while  in  tran- 
sit on  defendant's  road,  a  statement,  made  by  the  engineer  wiiile  the 


§  Y6)  ADMISSIBILITY.  139 

against  the  corporation.'*  Under  this  head,  also,  come  state- 
ments made  by  third  persons  to  whom  parties  to  the  suit  have 
referred  others  for  information;  the  agency  here  being  for 
the  purpose  of  making  the  statements.^'  Statements  made 
about  matters  other  than  the  particular  matter  concerning 
which  reference  to  the  third  party  was  made  are  not  admis- 
sible.'® The  agency  relation  necessary  to  render  the  state- 
ments sought  to  be  introduced  admissible  must  be  proved  by 

cattle  were  being  loaded,  that  he  would  kill  them  before  they  reached 
a  certain  point,  was  held  admissible.  Crawford  v.  Ry.  Co.,  56  S.  C. 
136,  34  S.  E.  SO. 

54  Choctaw,  O.  &  G.  R.  Co.  v.  Rolfe,  76  Ark.  220,  88  S.  W.  870; 
Lynchbur?  Tel.  Co.  v.  Bokher  (Va.)  50  S.  E.  148. 

In  an  action  for  personal  injuries  against  a  city,  the  plaintiff  al- 
leging that  the  defendant  was  negligent  in  failing  to  have  the  electric 
current  shut  off  from  the  circuit  on  which  the  plaintiff  was  working, 
the  plaintiff,  for  the  purpose  of  proving  that  the  current  was  not  shut 
off  and  that  for  an  insufficient  reason,  offered  evidence  of  a  conversa- 
tion between  the  chairman  of  the  commission  in  charge  of  the  light- 
ing and  the  foreman.  The  foreman  was  asked  why  he  did  not  have 
the  circuit  cut  off,  and  replied  that  it  was  because  "G."  was  baking 
bread,  to  which  the  chairman  replied:  "Are  you  going  to  burn  a  man 
up  for  a  few  loaves  of  bread?  Damn  G.  and  his  bread."  It  was  held" 
that  this  was  admissible,  and  was  binding  upon  the  city.  City  of 
Austin  V.  Forbis  (Tex.  Sup.)  89  S.  W.  405. 

5  5  In  Chapman  v.  Twitchell.  37  Me.  59,  58  Am.  Dec.  773,  the  ac- 
tion was  by  A.  against  X.  for  trespass.  The  trespass  depended  upon 
the  location  of  a  boundary  line  which  was  in  dispute.  X.  introduced 
evidence  that  M.,  in  a  conversation  with  A.,  asked  him  to  show  him 
where  the  corner  of  the  land  was,  and  A.  replied  that  T.  could  show 
where  the  corner  was ;  that  T.  accordingly  went  with  M.,  and  pointed 
out  a  certain  white  pine  stump  as  the  corner.  Upon  the  question 
whether  this  was  properly  admitted  as  an  admission  binding  A.,  the 
court  say  (page  62) :  "The  admissions  of  a  third  person  are  receivable 
in  evidence  against  the  party  who  has  expressly  referred  another  to 
him  for  information  in  regard  to  an  uncertain  or  disputed  fact.  In 
such  cases  the  party  is  bound  by  the  declarations  of  the  person  re- 
ferred to  in  the  same  manner  and  to  the  same  extent  as  if  they  were 
made  by  himself."  To  the  same  effect  are  Chadsey  v.  Greene,  24 
Conn.  562,  572;  Bigler  v.  Atkins,  21  Wldy.  Dig.  (N.  Y.)  201;  Over  v. 
Schiffling,  102  Ind.  191,  26  N.  E.  91;  Turner  v.  Yates,  16  How.  (U.  S.) 
14,  28,  14  L.  Ed.  824.  But  it  must  distinctly  appear  that  the  reference 
to  the  third  party  was  intended  to  be  authoritative.  A  mere  casual 
statement,  expressing  a  desire  to  consult  a  third  party,  is  not  suflS- 
cient.    Proctor  v.  Railroad  Co..  154  Ma'JS.  251,  28  N.  E.  1.3. 

56  Allen  V.  Killinger,  8  Wall.  (U.  S.)  480,  19  L.  Ed.  470. 


140  ADMISSIONS.  (Ch.  6 

evidence  other  than  the  statements  of  the  agent ;   and,  until  it 
is  so  proved,  such  statements  are  inadmissible.^'^ 

It  is  noticeable  that,  in  many  of  the  cases  where  the  state- 
ments of  third  persons  are  admitted  as  binding  upon  a  party 
to  the  suit  on  the  theory  of  agency,  these  same  statements 
would  be  admissible  on  the  other  ground  of  being  a  part  of 
the  res  gestae.^* 


SAME— ADMISSIONS  PENDING  NEGOTIATIONS  FOR  COM- 
PROMISE. 

77.  The  fact  that  a  party  to  a  suit  made  an  offer  to  settle  it 

is  not  provable  as  an  admission  of  liability. 

78.  Statements  and   declarations  made  after  suit  brought,  in 

the  course  of,  or  as  a  part  of,  negotiations  for  a  com- 
promise, are  not  receivable  as  admissions  against  the 
party  making  them,  if  they  are  stated  to  be  made 
•without  prejudice,  or  if  they  are  clearly  of  such  na- 
ture that  the  court  can  see  that  they  would  only  have 
been  made  for  the  purpose  of  furthering  the  negoti- 
ations, and  on  the  understanding  that  they  urould  not 
be   used. 

79.  The  mere   fact   that  an  admission   is  made   in    the   course 

of  negotiations  for  compromise  is  not  sufficient  to  ex- 
clude it  if  it  relates  to  a  material  fact  in  issue,  and 
^vas  not  made  under  the  circumstances  mentioned  in 
the   preceding   paragraph. 

The  rules  of  exclusion  above  stated  are  founded  upon  the 
policy  of  the  law  which  encourages  settlements  between  liti- 
gants. To  encourage  the  greatest  freedom  of  negotiation, 
the  courts  have  laid  it  down  as  a  rule  that  no  admission  or 
statement  made  in  the  course,  and  for  the  sole  purpose,  of 
such  negotiation,  shall  affect  the  litigation,  to  the  prejudice  of 
the  party  making  it;  and  they  have  therefore  refused  to  re- 
ceive such  statements  as  evidence.^®     It  must  appear,  how- 

5T  Sohoenhofen  Brewing  Co.  v.  Wensler,  57  III.  App.  184;  Postal 
Telegraph  Cable  Co.  v.  Brantley,  107  Ala.  G83,  18  South.  321 ;  Waller 
V.  Leonard  (Tex.  Civ.  App.)  34  S.  W.  799. 

5  8  See  section  210,  and  case.s  cited  thereunder. 

so  Smith  v.  Satterlee.  130  N.  Y.  077,  29  N.  E.  22.^;  White  v.  Steam- 
ship Co.,  102  N.  Y.  600,  6  N.  E.  289;  Doyle  v.  Levy,  89  Hun,  .3:50,  35 
N.  Y.  Supp.  434;   Callen  v.  Rose,  47  Neb.  638,  66  N.  W.  639;   Galves- 


§§  77-79)  ADMISSIBILITY.  141 

ever,  that  the  statements  were  stated  to  be  made  without  preju- 
dice, or  that  the  circumstances  surrounding  the  making  of  them 
were  such  that  it  was  understood  they  were  so  made.^° 

It  has  been  held  that  an  offer  of  money  made  to  induce  the 
withdrawal  of  a  criminal  charge  is  not  admissible,®^  though 
it  seems  that  in  such  case  the  reason  for  the  exclusion  of  the 
oft'er  is  entirely  wanting.  No  consideration  of  public  policy 
requires  the  settlement  of  a  criminal  case.  On  the  contrary, 
the  interests  of  the  public  require  vigorous  prosecution.  There 
may,  however,  be  a  lack  of  reliability  in  evidence  of  an  offer 
to  settle  a  criminal  case.  Doubtless  many  such  offers  have 
been  made,  although  no  guilt  exists,  merely  for  the  purpose 
of  avoiding  the  notoriety  attached  to  a  public  criminal  prose- 
cution. In  this  view  an  offer  of  settlement  might  be  said  to 
have  little  probative  force. 

There  is  a  distinction,  however,  between  offers  of  com- 
promise, statements  made  tentatively  in  connection  therewith, 
or  admissions  of  facts  understood  to  be  made  without  preju- 
dice, and  admissions  of  material  facts  in  issue  made  in  the 
course  of  negotiations,  but  not  under  such  conditions.  The 
mere  fact  of  the  negotiations  pending  will  not  be  ground  for 
the  exclusion  of  statements  of  the  latter  kind.®^ 

ton,  H.  &  S.  A.  Ry.  Co.  v.  Green  (Tex.  Civ.  App.)  35  S.  W.  819.  On 
the  same  principle,  an  admission  made  for  a  special  purpose,  otlier 
than  a  compromise,  will  not  be  received  generally  against  the  party 
making  it.  Cincinnati,  H.  &  I.  R.  Co.  v.  McDougall,  108  Ind.  179,  182, 
8  N.  E.  571.  The  rule  only  extends  to  offers  of  compromise  of  the 
matters  in  issue  in  the  suit  pending  in  which  the  evidence  is  offered. 
Stuht  V.  Sweesy.  48  Neb.  767,  67  N.  W.  748 ;  Tennant  v.  Dudley,  144 
N.  Y.  504,  39  N.  E.  &44. 

6  0  White  V.  Steamship  Co.,  102  N.  Y.  GGO,  662,  6  N.  E.  289. 

61  Sanders  v.  State  (Ala.)  41  South.  466. 

6  2  Beaudette  v.  Gagne,  87  Me.  534,  33  Atl.  23.  The  language  of  the 
decision  is  (pages  537,  538,  87  Me.,  and  pages  23,  24,  33  Atl.):  "The 
law  very  wisely  excludes  the  testimony  of  mere  offers  of  compromise 
when  one  against  whom  a  claim  is  made  denies  his  liability  or  the 
extent  of  it,  but,  for  the  purpose  of  buying  his  peace,  makes  an  offer 
of  concession  or  compromise.  This  should  have  no  effect  whatever 
against  him,  and  therefore,  ordinarily,  should  not  be  admitted  in  evi- 
dence. The  same  is,  of  course,  true  if  a  person  making  a  claim 
against  another,  for  the  purpose  of  preventing  litigation,  offers  to  set- 
tle for  a  less  sum  than  he  claims  to  be  entitled  to.  But  if,  during  the 
negotiations,  either  makes  an  admission  of  a  fact  material  to  the  is- 


142  ADMISSIONS.  (Ch.  6 


CIVIIi   AND   CRIMINAL   CASES. 

80.    There  is  no   distinction  between  civil  and  criminal  cases 
in  respect  to  tlie  nse  of  admissions. 

"In  general,  the  rules  of  evidence  in  criminal  and  civil  cases 
are  the  same.  Whatever  the  agent  does  within  the  scope  of 
his  authority  binds  his  principal,  and  is  deemed  his  act.  It 
must,  indeed,  be  shown  that  the  agent  has  the  authority,  and 
that  the  act  is  within  its  scope ;  but  that  being  conceded  or 
proved,  either  by  the  course  of  business  or  by  express  author- 
ization, the  same  conclusion  arises  in  point  of  law  in  both 
cases."  ^^     It  is  the  same  with  statements  as  with  acts ;   given 

sue,  because  it  is  a  fact,  such  admission,  both  upon  principle  and  upon 
authority,  may  be  put  in  evidence,  the  same  as  if  made  elsewhere 
and  under  different  circumstances."  To  the  same  effect :  Rose  v.  Hose, 
112  Cal.  341,  44  Pac.  658;  White  v.  Steamship  Co.,  supra;  Hartford 
Bridge  Co.  v.  Granger,  4  Conn.  142;  Akers  v.  Kirlie,  91  Ga.  590,  18  S. 
E.  3G6. 

6  3  Language  of  Judge  Story  in  U.  S.  v.  Gooding  (1827)  12  Wheat. 
i^GO,  6  L.  Ed.  693.  In  this  case,  upon  the  trial  of  X.,  the  owner  of  a 
ship,  for  being  engaged  in  the  slave  trade,  the  testimony  of  C.  is  of- 
fered that  H.,  the  captain  of  the  ship,  promised  to  C.  to  engage  him 
as  mate  for  the  voyage  to  Africa  for  slaves,  and  offered  C,  in  addi- 
tion to  his  wages,  five  dollars  a  head  for  every  slave,  and  said  that,  in 
the  event  of  disaster,  X.  would  see  the  crew  paid.  Judge  Story  says: 
"The  argument  is  that  the  testimony  is  not  admissible,  because,  in 
criminal  cases,  the  declarations  of  the  master  of  the  vessel  are  not 
evidence  to  charge  the  owner  with  an  offense;  and  that  the  doctrine 
of  the  binding  effect  of  such  declarations  by  known  agents  is  and 
ought  to  be  confined  to  civil  cases.  We  cannot  yield  to  the  force  of 
the  argument."  It  is  to  be  noted  that  the  declarations  of  the  master 
in  this  particular  case  were  admitted  expressly  upon  the  ground 
that  they  were  a  part  of  the  res  gestae,  as  is  shown  by  the  following: 
"These  declarations  were  connected  with  acts  in  furtherance  of  the 
objects  of  the  voyage,  and  within  the  general  scope  of  his  authority  as 
conductor  of  the  enterprise.  *  *  *  They  were  therefore,  in  the 
strictest  sense,  a  part  of  the  res  gestte,  the  necessary  explanations 
attending  the  attempt  to  hire.  *  *  *  Our  opinion  of  the  admissi- 
bility of  this  evidence  proceeds  upon  the  ground  that  these  were  not 
the  naked  declarations  of  the  master,  imaceompaniod  with  his  acts  iu 
that  capacity,  but  declarations  coupled  with  proceedings  for  the  ob- 
jects of  the  voynge,  and  while  it  was  in  progress.  We  give  no  opinion 
upon  the  point  whether  mere  declarations  under  other  circumstances 
would  have  been  admissible." 


§  80)  OIVIL   AND   CRIMINAL   CASES.  143 

the  authorit}',  and  the  statement  is  binding  on  the  principal. 
The  cases  clearly  show  that  the  rule  as  to  admissions  is  not 
confined  to  civil  cases. 

Difficult  Questions  Arising  in  Criminal  Cases. 

A  curious  question  sometimes  arises  in  criminal  cases  where 
two  persons  are  jointly  charged  with  the  commission  of  crime. 
One  of  the  accused  may  make  statements  respecting  the  crime 
which  would  be  strong  evidence  as  to  its  commission.  How 
far  such  statements  are  admissible  against  the  other  who  is 
charged  with  the  same  crime  must  then  be  determined.  In 
one  case,  for  example,  where  two  parties  were  tried  together 
for  conspiracy  to  cheat  and  defraud,  the  jury  disagreed  as  to 
one  of  the  accused  persons,  and  found  the  other  one  guilty. 
As  a  matter  of  fact,  outside  of  the  proof  in  the  case,  it  was 
impossible  that  the  one  should  have  been  guilty  without  the 
other  one  also  having  been  guilty;  yet  it  is  entirely  possible 
that  the  proof  as  to  one  was  such  that  the  jury  were  justified 
in  finding  his  guilt,  whereas,  under  the  rules  of  evidence,  it  was 
insufficient  to  prove  the  guilt  of  the  other.  But,  by  a  technical 
rule  prevailing  in  criminal  cases,  it  is  held  impossible,  where 
the  parties  are  tried  together,  to  find  one  guilty  unless  the  other 
is  also  convicted.^* 

Admissions  of  One  Conspirator  Used  Against  Another. 

A  rule  is  also  well  established  that,  in  cases  where  con- 
spiracy is  charged,  the  admissions  of  one  of  the  accused  may 
become,  by  reason  of  the  other  proof  in  the  case,  admissible 
against  the  other.  By  themselves,  and  without  other  proof, 
they  are  not  admissible ;  but,  if  the  proof  shows  the  existence 
of  the  conspiracy,  statements  as  to  details  of  the  crime  charged, 
made  by  one  of  the  parties,  become  admissible  against  the  oth- 
er. The  effect  of  this  rule  may  be  illustrated  by  supposing 
that  the  fact  of  the  commission  of  the  act  which  is  charged  as 
a  crime  is  difficult  of  proof,  but  the  fact  of  the  conspiracy  to 
commit  such  an  act  has  been  sufficiently  proved.  To  procure 
a  conviction,  it  is  necessary  that  proof  shall  reach  to  both  facts. 
Suppose,  now,  that  the  only  proof  of  the  former  fact  con- 

6  4  Reg.  V.  Manning  (1883)  12  Q.  B.  Div.  241;  Rex  v,  Cooke,  5  Barn. 
&  C.  538;  Reg.  v.  Thompson,  16  Q.  B.  832;  O'Connell  v.  Reg.,  11 
Clark  &  F.  155. 


14:4  ADMISSIONS.  (Ch.  6 

sisted  of  statements  in  respect  to  it  made  by  one  of  the  parties. 
It  is  clear  that  since  both  are  shown  to  have  been  interested 
together,  and  to  have  set  out  to  commit  the  act,  the  statements 
m.ade  by  one  as  to  what  was  done  should  be  received  against 
the  other. ^^  It  must  be  borne  in  mind,  however,  that  the  fact 
of  the  conspiracy  is  to  be  proved  by  evidence  entirely  outside 
of  the  admissions.'^*'  It  is  probable  that,  in  all  cases  of  con- 
spiracy where  admissions  are  received,  their  reception  could  be 
explained  on  the  ground  that  they  are  a  part  of  the  res  gestae.®'' 

Other  Cases  of  Joint  Crimes. 

In  cases  of  a  joint  crime,  such  as  fornication  or  adultery, 
which  cannot  be  committed  except  by  the  concurrent  act  of 
two  parties,  the  rule  is  the  same  as  in  cases  of  conspiracy.     The 

6  5  U.  S.  V.  McKee,  3  Dill.  (U.  S.)  546,  Fed.  Cas.  No.  15,635;  Com.  v. 
Waterman,  122  Mass.  43,  59;  Dewey  v.  Moyer,  72  N.  Y.  70,  80;  Lowe 
V.  Dalrymple,  117  Pa.  564,  568,  12  Atl.  567;  State  y.  Brady,  107  N. 
C.  822,  831,  12  S.  E.  325 ;  Seville  v.  State,  49  Ohio  St.  117,  128,  30  N. 
E.  621,  15  L.  R.  A.  516;  Travers  v.  Snyder,  38  111.  App.  379,  388, 
Walls  V.  State,  125  Ind.  400,  25  N.  E.  457 ;  State  v.  Minton,  116  Mo. 
605,  22  S.  W.  80S;  Holtz  v.  State,  76  Wis.  99,  44  N.  W.  1107;  People' 
V.  Brown,  59  Cal.  345,  352.  The  existence  of  the  conspiracy  need  only 
be  proved  prima  facie.  Dodge  v.  Goodell,  16  R.  I.  48,  12  Atl.  236, 
The  statements  must  relate  to  acts  connected  with  or  in  furtherance 
of  the  conspiracy.  New  York  Guaranty  &  Indemnity  Co.  v.  Gleason, 
78  N.  Y.  503 ;  State  v.  Thibeau,  30  Vt.  100,  107 ;  State  v.  Flanders, 
118  Mo.  227,  236,  23  S.  W.  1080;  State  v.  Buchanan,  35  La.  Ann.  89; 
Nicolay  v.  Mallery,  62  Minn.  119,  64  N.  W.  108. 

But  where  one  of  the  alleged  conspirators  has  been  acquitted,  it  has 
been  held  that  his  acts  and  declarations  are  no  longer  provable 
against  another  alleged  conspirator.  Paul  v.  State,  12  Tex.  App.  346. 
Contra,  Musser  v.  State,  157  Ind.  423,  61  N.  E.  1. 

66  In  Ormsby  v.  People,  53  N.  Y.  472,  it  was  held  that  the  mere  pres- 
ence of  A.  with  B.  and  C.  in  a  store  while  B.  and  C.  committed  a 
theft,  and  the  fact  of  A.  having  come  with  them,  and  being  an  ac- 
quaintance, were  not  siifBcient  to  show  prima  facie  a  conspiracy  with 
tliem,  so  as  to  render  declarations  of  B.  and  C.  competent  against  A. 
Com.  v.  Waterman,  122  Mass.  43;  State  v.  Daubert,  42  Mo.  239; 
Brown  v.  Com.,  86  Va.  935,  11  S.  E.  799;  State  v.  Brown,  34  S.  C.  41, 
46,  12  S.  E.  662;   Territory  v.  Campliell,  9  Mont.  36,  22  Pac.  121. 

67  This  view  is  taken  by  Underbill  in  his  recent  work  on  Evidence 
(page  9.").  New  York  Guaranty  &  Indemnity  Co.  v.  Gleason,  78  N.  Y. 
503;  Nicolay  v.  Mallery.  62  Minn.  119,  64  N.  W.  108;  Spies  v.  People, 
122  111.  1,  12  N.  E.  86.5,  and  17  N.  E.  898,  3  Am.  St.  Rep.  320;  Clawson 
V.  State,, 14  Ohio  St.  234. 


§  80)  CIVIL  AND   CRIMINAL   CASES.  145 

furthest  the  courts  have  gone  is  to  allow  one  of  the  parties  to 
be  tried  by  himself,  and  convicted,  and  then  judgment  is  giv- 
en against  that  party,  because  as  to  him  the  guilt  of  the  other 
party  is  found  as  well  as  his  own.  But  when  the  one  has  been 
previously  tried  or  acquitted,  or  when  both  are  tried  together, 
and  the  verdict  is  for  one,  the  other  cannot  be  found  guilty." 
It  may  happen  that  the  guilt  of  one  of  the  parties  is  conclusive- 
ly proved  by  the  admissions  of  such  party;  but  it  seems  the 
court  would  not  shrink  from  going  to  the  full  length  of  de- 
claring that  in  such  case,  since  the  admissions  would  not  be 
good  as  against  the  other  party,  there  could  be  no  judgment 
against  either.®*  That  the  rule  referred  to  is  not  favored  by 
the  courts  is  seen  in  the  fact  that,  in  civil  cases  where  the  same 
difficulty  has  arisen,  they  have  refused  to  follow  it,  and  have 
said  that  it  was  a  purely  technical  rule,  and  should  be  confined 
strictly  to  the  cases  in  criminal  law  where  it  has  been  applied.'^** 

88  state  V.  Rinehart  (1890)  106  N.  C.  787,  11  S.  B.  512.  Contra, 
Alonzo  V.  State,  15  Tex.  App.  378,  49  App.  Rep.  207;  State  v.  Caldwell, 
8  Baxt.  (Tenn.)  576. 

69  State  V.  Rinehart,  106  N.  C.  787,  11  S.  E.  512.  In  this  case 
there  was  held  to  be  sufficient  evidence  outside  of  the  admissions 
against  the  parties  to  justify  conviction;  so  that  while  the  court 
stated  that,  were  it  not  for  such  evidence,  it  would  have  been  re- 
quired to  hold  that  neither  party  could  have  been  convicted,  it  was 
not  in  fact  forced  to  this  position. 

7  0  Robinson  v.  Robinson  (1858)  1  Swab.  &  T.  362.  In  Pomero  v. 
Pomero,  London  Times,  Dec.  20,  1884,  Mr.  Justice  Butt,  in  charging  the 
jury  in  a  proceeding  for  divorce,  said:  "There  was  a  curious  feature 
in  this  case  to  which  he  desired  to  direct  their  attention.  As  the  re- 
spondent had  filed  no  answer  to  the  petition,  it  was  for  the  court,  and 
not  for  the  jury,  to  decide  whether  she  had  committed  adultery  with 
the  co-respondent;  and  his  decision  was  that  she  had.  But,  as  the 
co-respondent  had  filed  an  answer  denying  the  adultery  with  the  re- 
spondent, it  was  for  the  jury  to  find  whether  he  had  committed  it  or 
not.  Now,  it  was  open  to  the  jury  to  find  that  the  co-respondent  had 
not  committed  adultery  with  the  respondent,  while  the  court  found 
that  the  respondent  had  committed  adulteiy  with  the  co-respondent. 
Two  such  findings  would  appear  to  be  In  complete  contradiction:  but 
the  contradiction  would  be  more  apparent  than  real.  Coui'ts  and  ju- 
ries must  base  their  findings  on  evidence,  and  what  might  be  in  law" 
conclusive  evidence  against  one  of  the  parties  charged  might  be  none 
whatever  against  the  other." 

m'kelv.ev.(2d  ED.)— 10 


146  ADMISSIONS.  (Ch.  G 


PROOF  OF  ADMISSIONS. 

81.  The  method  of  proving  admissions  is  the  same  as  that  of 

proving   other   facts. 

The  preliminary  examination  relating  to  contradictory  state- 
ments, which  is  required  in  the  case  of  attempted  impeachment 
of  a  witness  by  showing  that  he  has  made  different  statements 
at  a  previous  time,  is  not  necessary  in  proving  the  admissions 
of  a  party.'^^  The  fact  that  the  party  has,  as  a  witness  in  his 
own  behalf,  sworn  to  the  contrary  of  the  admission,  does  not 
change  the  case.  His  attention  need  not  be  called  to  the  pre- 
vious admissions  which  are  expected  to  be  proved.''^ 

It  sometimes  happens  that  an  attempt  is  made  to  hold  as 
binding  the  admissions  of  one  party  as  against  another.  The 
subject  of  when  and  how  this  may  be  done  has  been  fully  cov- 
ered.'^^  In  such  case  preliminary  proof  may  be  necessary  to 
show  the  connection  between  the  parties  which  justifies  the 
admission  of  statements  made  by  one  as  against  the  other. 
The  proof  of  relationship  or  authority  as  between  the  two 
parties  is  not  a  subject  identified  with  the  subject  of  admis- 
sions. What  proof  will  be  required  or  allowed,  and  how  much 
will  be  necessary  to  establish  the  relationship  or  authority, 
are  questions  entirely  apart  from  the  doctrine  of  admissions. 

EFFECT   OF   ADMISSIONS. 

82.  The   effect  of  an  admission  is  dependent— 

(a)  Upon  whether  or  not  it  is   conclusively  proved. 

(b)  In  what  way  it  may  be  explained  or  limited  by  the  par- 

ty Tirho  has  made  it. 

There  is  a  distinction  between  an  admission  and  the  proof 
of  an  admission.  Until  it  is  clearly  proven  that  an  admission 
has  been  made,  it  can  have  no  effect.  Testimony,  disputed,  or 
denied,  or  weakened,  in  respect  to  the  making  of  an  admission, 

71  Moore  v.  Crosthwait,  185  Ala.  272,  .33  South.  28. 
7  2  Second  Borrowers'  &  Investors'  Bid??.  Ass'n  v.  Cochrane,  103  111. 
App.  29;   Dunafin  v.  Barber  (Neb.)  92  N.  W.  198. 
78  Ante,  p.  128. 


§§  81-82)  EFFECT    OF   ADMISSIONS.  147 

cannot,  of  course,  have  much  effect.  Once  let  it  be  proved  that 
an  admission  has  been  made  as  to  a  fact  in  dispute,  and  it 
then  becomes  a  question  as  to  what  the  testimony  of  the  party 
making  it  may  disclose.  He  may  say  he  lied  when  he  made 
it,  or  he  may  so  explain  the  circumstances  under  which  the 
admission  was  made  that  it  will  have  little  weight.'^* 

If  the  admission  is  neither  explained  nor  its  force  weakened, 
it  may  still  be  a  question  as  to  whether  it  establishes  conclusive- 
ly the  fact  admitted.  It  may,  for  example,  be  an  admission 
of  some  fact  evidential  to  the  main  fact  in  issue,  and  as  to- 
such  main  fact  there  may  be  much  other  testimony.  It  then 
becomes  a  matter  of  weighing  the  testimony  pro  and  con,  bal- 
ancing the  inferences,  and  deciding  whether  or  not  the  main 
fact  is  sufficiently  established.  The  admission  in  such  case 
is  merely  a  piece  of  evidence  to  be  considered  with  other 
evidence. 

The  admission  may,  on  the  other  hand,  relate  to  the  main 
fact  itself,  in  which  case,  if  conclusively  established,  it  has^  a 
strong,  in  fact  almost  conclusive,  effect,  both  by  reason  of  its- 
probative  force  and  by  reason  of  the  estoppel  element  hereto- 
fore referred  to.  It  is  by  reason  of  this  element  that  it  may 
excuse  further  proof  on  the  part  of  the  party  alleging  the  fact.. 
If,  however,  the  party  denying  the  fact,  and  against  whom' 
the  admission  has  been  used,  gives  such  a  quantity  of  other 
evidence  as  to  make  it  clear  that  the  fact  is  otherwise  than  as 
admitted,  the  jury  would  certainly  be  justified  in  disregarding 
the  admission,'' "^ 

T  4  Take,  for  example,  the  case  of  an  admission  in  an  original  an- 
swer, whieli,  having  been  drawn  up  hurriedly  and  without  consulta- 
tion with  the  defendant,  has  been  displaced  by  an  amended  answer. 
The  defendant  will  be  permitted  to  explain  the  circumstances,  and 
the  effect  of  the  admission  would  be  practically  destroyed.  Schultz  v. 
Culbertson,  125  Wis.  169,  10.3  N.  W.  2.34. 

7  5  An  admission  in  a  pleading,  whether  by  failure  to  deny  some  al- 
legation in  the  prior  pleading  or  by  express  terms,  has  a  conclusive  ef- 
fect on  the  party  making  it.  This  is  because  it  is  a  waiver  of  proof, 
and  not  because  it  is  evidence.  A  statement  in  a  pleading  of  a  fact 
which  is  not  in  affirmance  of  a  fact  alleged  in  the  prior  pleading  is, 
however,  nothing  more  than  an  ordinary  admission,  the  efCect  of 
which,  if  given  in  evidence  against  the  party  making  it,  may  be  ex- 
plained away.  Ferris  v.  Ilnrd.  135  N.  Y.  354,  32  N.  E.  129;  Chamber- 
lain v.  Iba,  18]  N.  Y.  486,  74  N.  E.  481. 


148  CONFESSIONS.  (Ch.  7 

CHAPTER  VII. 
CONFESSIONS. 

83.  Confessions  Defined. 

84.  Admissibility — Must  be  Voluntary. 
85-86.     Court  to  Determine  Whether  Voluntary. 

87.  Judicial  Compulsion. 

88-91.  Tlireats  or  Inducements. 

92.  Confessions  Under  Influence  of  Liquor. 

93.  Evidence  in  Former  Proceeding. 

94.  Whole  Confession  Must  be  Introduced. 

95.  Confessions  may  be  Explained. 

96.  Evidence  Obtained  as  Result  of  Confession. 

97.  Implied  Confessions. 

CONFESSIONS   DEFINED. 

83.    Confessions  are  admissions  of  guilt  made  by  persons  ac- 
cused of   crime. 

The  law  relating  to  confessions  has  been  to  a  considerable 
extent  shaped  by  statutory  provisions,  and  is  not  entirely  the 
product  of  the  courts.  The  effect  of  the  ancient  and  long- 
continued  practice  of  extorting  confessions  by  threat  or  by 
torture  was  seen,  when  more  enlightened  methods  had  come 
into  vogue,  in  the  tendency  to  place  little  reliance  upon  con- 
fessions as  evidence,  and  to  regard  their  use  as  dangerous.^ 

1  The  weakness  of  this  class  of  evidence  has  been  recognized  from 
very  early  times.  In  Fost.  Crown  Law  (1763)  243,  it  is  said:  "For 
hasty  confessions,  made  to  persons  having  no  authority  to  examine, 
are  the  weakest  and  most  suspicious  of  all  evidence.  Proof  may  be 
too  easily  procured.  Words  are  often  misreported ;  whether  through 
ignorance,  inattention,  or  malice,  it  matters  not  to  the  defendant;  he 
is  equally  affected  in  either  case,  and  they  are  extremely  liable  to  mis- 
construction. And,  withal,  this  evidence  is  not,  in  the  ordinary  course 
of  things,  to  be  disproved  by  that  sort  of  negative  evidence  by  which 
the  proof  of  plain  facts  may  be,  and  often  is,  confronted."  And  in  4 
Bl.  Comm.  (8th  Ed.,  1778)  357,  we  find  the  following  passage:  "Even 
in  cases  of  felony  at  the  common  law,  they  [confessions]  are  the  weak- 
est and  most  suspicious  of  all  testimony;  ever  liable  to  be  obtained  by 
artifice,  false  hopes,  promises  of  favors,  or  menaces,  seldom  remem- 


§  83)  CONFESSIONS   DEFINED.  149 

Statutes  were  accordingly  passed  prescribing  conditions  under 
which  they  could  be  taken  and  used.-  It  seems,  however,  that, 
even  where  not  taken  in  pursuance  of  the  statutes,  confessions 
were  allowed  to  be  given  in  evidence  at  the  common  law.^ 
Confessions,  as  treated  of  in  this  chapter,  embrace  those 
more  or  less  formal  admissions  of  guilt  made  by  persons 
charged  with  crime,  which,  as  proof,  go  to  the  main  facts  in 
issue,  rather  than  to  any  single  fact  or  circumstance.*     Con- 


bered  accurately  or  reported  with  due  precision,  and  Incapable  In  their 
nature  of  being  disproved  by  other  negative  evidence." 

2  The  use  of  confessions  against  a  party  was  first  regulated  by 
statute  in  1  ife  2  Phil.  &  M.  c.  13,  and  2  &  3  Phil.  &  M.  c.  10.  In  2 
Hale,  P.  C.  284,  285,  we  find  the  following  statement:  "By  the  statute 
of  1  &  2  Phil.  &  M.  c.  13,  and  2  &  3  Phil.  &  M.  c.  10,  justices  of  peace 
and  coroners  have  povper  to  take  examinations  of  the  party  accused, 
and  informations  of  the  accusers  and  witnesses  (the  examinations  to 
be  without  oath,  the  informations  to  be  upon  oath),  and  are  to  put 
the  same  in  writing,  and  are  to  certify  the  same  to  the  next  gaol  de- 
livery. These  examinations  and  informations  thus  taken  and  re- 
turned may  be  read  in  evidence  against  the  prisoner  if  the  informer 
be  dead  or  so  sick  that  he  is  not  able  to  travel,  and  oath  thereof 
made;  otherwise,  not.  But  then :  (1)  Oath  must  be  made  either  by 
the  justice  or  coroner  that  took  them,  or  the  clerk  that  wrote  them, 
that  they  are  the  true  substance  of  what  the  informer  gave  in  upon 
oath,  and  what  the  prisoner  confessed  on  his  examination.  (2)  As  to 
the  examination  of  the  prisoner,  it  must  be  testified  that  he  did  it 
freely,  without  any  menace  or  undue  terror  imposed  upon  him;  for  I 
have  often  known  the  prisoner  disown  his  confession  u)wn  his  exam- 
ination, and  hath  sometimes  been  acquitted  against  such,  his  con- 
fession." 

3  That  confessions  were  allowed  to  be  given  in  evidence  at  common 
law  seems  to  be  clear  from  2  Hawk.  P.  C.  c.  4G,  §§  3,  4.  "As  to  the 
first  particular,  viz.  where  the  confession  of  the  defendant  or  the  dep- 
ositions of  others,  out  of  court,  may  be  allowed  as  evidence,  it  seems 
that  the  confession  of  the  defendant  himself,  where  taken  upon  an  ex- 
amination of  justices  of  peace,  in  pursuance  of  1  &  2  Phil.  &  M.  c.  13, 
or  of  2  &  3  Phil.  &  M.  c.  10,  upon  a  bailment  or  commitment  for  fel- 
ony, or  taken  by  the  common  law  upon  an  examination  before  a  sec- 
retary of  state  or  other  magistrate,  for  treason  or  other  crimes,  not 
within  those  statutes,  or  in  discourse  with  private  persons,  hath  al- 
ways been  allowed  to  be  given  in  evidence  against  the  party  confess- 
ing, but  not  against  others." 

4  In  Davis  v.  Com.,  95  Ky.  19.  23  S.  W.  585,  44  Am.  St.  Rep.  201, 
the  accused  offered  in  evidence  as  a  confession  the  statement  of  one 
X.,  made  on  his  deathbed,  to  the  effect  that  he,  X.,  had  killed  M.,  for 


150  CONFESSIONS.  (Ch.  7 

fessions,  therefore,  comprise  a  small  class  of  admissions, — ad- 
missions which  come  within  certain  conditions  prescribed  by 
statute  as  to  their  making,  and  which  in  their  evidential  use 
are  confined  to  the  criminal  law. 

Reason  for  Narrow  Definition. 

The  definition  of  confession  here  given  is  somewhat  nar- 
rower than  that  usually  adopted.  It  is  quite  common  to  in- 
clude, under  the  term  "confessions,"  all  declarations,  state- 
ments, or  acts  on  the  part  of  an  accused  person  which  may 
lead  to  an  inference  of  guilt. ^  In  this  sense,  the  word  "con- 
fession" has  no  distinction  from  the  word  "admission,"  and 
is  also  open  to  the  objection  of  including  a  large  amount  of 
merely  circumstantial  evidence,  which  should  properly  be  clas- 
sified under  neither  head.  It  has  already  been  said  that  the 
so-called  "implied  admissions"  from  acts  or  conduct  are  really 
original  circumstantial  evidence,  and  should  not  properly  be 
spoken  of  as  admissions.  It  is  equally  true  that,  in  criminal 
cases,  implied  confessions  from  conduct  are  this  same  sort  bi 
evidence,  and  should  not  be  treated  as  confessions.  As  there 
is,  in  general,  no  difference  in  the  use  of  admissions  between 
criminal  and  civil  cases,  the  chapter  on  admissions  has  suf- 
ficiently covered  their  use  in  the  criminal  law,  and  it  remains 
to  deal  only  with  that  narrow  class  of  admissions  which,  by 
reason  of  their  solemn  character  and  broad  effect,  are  sub- 
ject to  certain  rules  not  applicable  to  certain  admissions. 


ADMISSIBILITY—MUST  BE  VOLUNTARY. 

84.  Confessions,  to  be  admissible  in  evidence,  mnst  be  volun- 
tary. If  made  as  the  result  of  threats  or  inducements 
they  are  inadmissible. 

whose  murder  the  accused  was  on  trial,  and  thus  sought  to  clear  him- 
self. It  was  held  that  such  statement  was  not  admissible  as  a  con- 
fession ;  that  the  statements  of  a  third  person  not  charged  with  the 
crime  were  not  competent  in  favor  of  the  accused ;  and  that  a  confes- 
sion was  incompetent  evidence  except  against  a  person  charged  with 
crime,  or,  in  a  proper  case,  against  his  confederates. 

B  Greenleaf  (Ev.  §  213),  Stephen  (Dig.  Ev.  art.  21),  Underbill  (Ev.  § 
88),  and  many  other  text  writers,  use  the  term  "confession"  in  the 
broad  sense  mentioned  in  tlie  text. 


§  84)  ADMISSIBILITY — MUST   BE    VOLUNTARY.  151 

The  important  element  in  determining  the  admissibility  of  a 
confession  is  that  it  should  be  voluntary.®  If  it  is  voluntary 
within  the  definition  of  that  term  as  laid  down  by  the  courts, 
it  satisfies  the  only  condition  required. 

There  are  many  decisions  upon  the  question  of  what  circum- 
stances will  render  a  confession  voluntary.  In  general,  it 
may  be  said  that  a  confession  is  voluntary  when  it  is  made  by 
the  person  accused,  under  such  circumstances  that  his  mind  is 
entirely  free  from  any  influence,  either  of  fear  or  favor.''     The 

6  Baron  Parke  says,  in  Reg.  v.  Baldry  (1852)  2  Denison,  Crown  Cas. 
430:  "I  entirely  agree  with  Lord  Chief  Baron,  and  with  the  view 
talien  by  Lord  Campbell  at  the  trial.  By  the  law  of  England,  in  order 
to  render  a  confession  admissible  in  evidence,  it  must  be  perfectly 
voluntary;  and  there  is  no  doubt  that  any  inducement  in  the  nature 
of  a  promise,  or  of  a  threat  held  out  by  a  person  in  authority,  vitiates 
a  confession."  See,  also.  People  v.  Chapleau,  121  N.  Y.  266,  24  N. 
E.  469;  Hopt  v.  People  of  Utah,  110  U.  S.  574,  4  Sup.  Ct.  202,  28  L. 
Ed.  262;  Wilson  v.  U.  S.,  162  U.  S.  613,  16  Sup.  Ct.  895,  40  L.  Ed. 
1090;  Robinson  v.  People,  159  111.  115.  42  N.  E.  375;  Redd  v.  State,  69 
Ala.  255,  259;  Self  v.  State,  6  Baxt.  (Tenn.)  244,  255;  State  v.  Car- 
rick,  16  Nev.  120,  130;   Bubster  v.  State,  33  Neb.  663,  50  N.  W.  953. 

A  threat  to  deliver  the  accused  to  a  mob  will  render  a  confession  in- 
admissible. Whitley  v.  State,  78  Miss.  2.55,  28  So.  852.  See,  also,  Bram 
V.  U.  S.,  168  U.  S.  532, 18  Sup.  Ct.  183,  42  L.  Ed.  508.  This  case  was  a  pe- 
culiar one,  in  that  the  words  used  by  n  police  officer  to  the  accused  were 
conceded  by  the  court  to  be  neither  a  threat  nor  a  promise,  and  yet 
the  court  reached  the  conclusion  that  there  was  sufficient  in  them 
to  make  any  conversation  or  statement  by  the  accused  inadmissible. 
The  testimony  of  the  detective,  because  of  the  admission  of  which 
the  Supreme  Court  of  the  United  States  ordered  a  new  trial,  was  as 
follows:  "When  Mr.  Bram  came  into  my  office,  I  said  to  him:  'Bram. 
we  are  trying  to  unravel  this  horrible  mystery.'  I  said:  'Your  posi- 
tion is  rather  an  awkward  one.  I  have  had  Brown  in  this  office,  and 
he  made  a  statement  that  he  saw  you  do  the  murder.'  He  said:  'He 
could  not  have  seen  me.  Where  was  he?'  I  said:  'He  states  he  was 
at  the  wheel.'  'Well,'  he  said,  'he  could  not  see  me  from  there.'  I 
said:  'Now,  look  here,  Bram,  I  am  satisfied  that  you  killed  the  cap- 
tain from  all  I  have  heard  from  Mr.  Brown.  But,'  I  said,  'some  of  us 
here  think  you  could  not  have  done  all  that  crime  alone.  If  you  had 
an  accomplice,  you  should  say  so.  and  not  have  the  blame  of  this  hor- 
rible crime  on  your  own  shoulders.'     He  said:     'Well,  I  think,  and 

"!  In  People  v.  Mcilahon,  15  N.  Y.  384,  Judge  Selden  defined  a  volun- 
tary confession  as  one  "proceeding  from  the  spontaneous  suggestion 
of  the  party's  own  mind,  free  from  the  influence  of  any  extraneous 
disturbing  cause." 


152  CONFESSIONS.  (Ch.  7 

important  quality  of  a  confession  is  that  it  be  spontaneous. 
Any  circumstances,  whether  m  the  physical  surroundings  of 
the  accused  or  in  statements  made  to  him,  which  tend  to  put 
him  in  a  position  where  there  is  any  inducement  for  him  to  ac- 
cuse himself,  destroy  the  spontaneousness  of  the  confession, 
and  make  it  valueless.  While  it  would  seem  highly  improbable 
that  a  person  accused  of  crime  would  make  a  false  confession, 
still  the  circumstances  are  often  such  as  to  make  a  confession 
in  the  mind  of  the  accused  seem  a  desirable  thing,  and  in- 
stances are  not  rare  where  false  confessions  have  been  made.® 


COURT  TO   DETERMINE   WHETHER   VOLUNTARY. 

85.  Tlie  question  T^lietlier  or  not  a  confession  offered  in  ev- 
idence is  voluntary  is  a  preliminary  question  of  fact, 
to  be   determined  by   tbe   court. 

Before  the  confession  is  submitted  to  the  jury,  the  court 
must  determine  whether  it  is  voluntary,  within  the  require- 
ments of  the  rule.®     For  this  purpose  it  must  hear  such  tes- 

many  others  on  board  the  ship  think,  that  Brown  is  the  murderer ; 
but  I  don't  Ivnow  anything  about  it'  "  This  case  probably  reaches  the 
extreme  limit  in  favor  of  the  accused  of  the  application  of  the  princi- 
ple that  confessions  or  statements  to  be  admissible  must  be  volun- 
tary. 

For  a  vpell-considered  note  respecting  this  decision,  see  11  Harvard 
Law  Rev.  408. 

8  Greenleaf  cites  the  case  of  the  two  Booms,  convicted  of  the  mur- 
der of  Russell  Colvin.  Greenl.  Ev.  §  214,  note  2.  This  case  is  also 
discussed  in  an  article  in  the  North  American  Review  (volume  10,  pp. 
418-429). 

9  Com.  V,  Culver  (1879)  126  Mass.  464.  Upon  the  trial  of  X.  for 
burglary,  the  prosecution  offers  the  confession  of  X.  X.  objects,  on 
the  ground  that  the  confession  was  made  in  consequence  of  offers  of 
favor  by  the  officer  who  arrested  him.  The  prosecution  called  the 
officer,  who  denied  he  had  made  any  such  offers  of  favor.  The  de- 
fendant then  offered  to  call  five  witnesses  to  prove  the  offei's  had  been 
made,  and  asked  the  court  to  hear  this  testimony,  and  decide  on  the 
competency  of  the  confession.  This  was  refused,  and  the  court  per- 
mitted the  evidence  of  the  confession.  Lord,  J.,  says :  "We  are  aware 
that  it  is  not  an  uncommon  practice  in  the  trial  of  criminal  causes, 
when  confessions  of  a  defendant  are  offered  in  evidence,  and  objected 
to  on  the  groimd  that  they  were  improperly  obtained,  for  the  presid- 


§  85)  COURT  TO  DETERMINE  WHETHER  VOLUNTARY.  153 

timony  as  both  sides  may  wish  to  submit.  The  statements 
of  the  witness  offered  to  prove  the  confession  are  not  to  be 
taken  alone,  but  the  defense  may  put  before  the  court  such  evi- 
dence as  it  has  with  respect  to  the  making  of  the  confession, 
and  upon  the  whole  testimony  submitted  the  court  must  deter- 
mine the  matter,  before  permitting  the  confession  to  go  before 
the  jury.^°  Although  the  court  may  decide  that  on  the  tes- 
timony as  to  the  circumstances  under  which  the  confession  is 
made  it  satisfies  the  rule,  and  may  therefore  allow  it  to  go  be- 
fore the  jury,  it  is  conceived  that  this  will  not  prevent  the  jury 
from  disregarding  the  confession  if  thev  believe  from  testi- 
mony  submitted  by  the  defendant  that  the  confession  never  in 
fact  was  made,  or  that  it  is  rendered  valueless  by  other  facts 
which  came  out  in  evidence. ^^  And  the  jury  may  consider  all 
the  testimony  in  determining  what  weight  to  give  to  the  con- 
fession.^^ As  the  prosecution  offers  and  relies  upon  the  con- 
fession, it  has  the  burden  before  the  court  of  establishing  that 


ing  judge  to  allow  the  confessions,  and  all  the  evidence  bearing  upon 
the  manner  in  which  they  were  obtained,  to  be  submitted  to  the  jury, 
either  to  be  rejected  by  the  jury  wholly,  or  to  be  allowed  such  weight 
as  under  all  the  circumstances  the  jury  deem  it  proper  to  give  them. 
This,  however,  as  we  understand  it,  is  rather  by  consent  than  other- 
wise; neither  party  desiring  to  take  the  decision  of  the  presiding 
judge  upon  the  question  of  competency.  *  *  *  The  prisoner  has 
always  the  right  to  require  of  the  judge  a  decision  of  the  competency 
of  the  evidence."  The  Massachusetts  doctrine  is  that  the  question  is 
primarily  a  question  for  the  court,  but  that,  if  the  court  determines 
in  favor  of  the  admissibility  of  the  confession,  the  jury  then  have  a 
right  to  consider  all  the  testimony,  and  disregard  the  confession,  if 
they  conclude  it  was  not  voluntary.  Ck)m.  v.  Preece,  140  Mass.  276.  5 
N.  E.  494.  See,  also,  Com.  v.  Russell,  1.56  Mass.  196,  30  N.  E.  763; 
State  V.  Holden,  42  Minn.  350.  44  N.  W.  123;  People  v.  Howes.  81 
Mich.  396,  45  N.  W.  961 ;  Wilson  v.  U.  S.,  162  U.  S.  613,  624,  16  Sup. 
Ct.  895,  40  L.  Ed.  1090;  Burdge  v.  State,  53  Ohio  St.  512,  42  N.  E.  594. 
In  Com.  V.  Shew,  190  Pa.  23,  42  Atl.  377,  the  question  whether  a 
confession  was  voluntary  or  not  was  held  properly  left  to  the  jury; 
but  this  is  not  the  prevailing  view. 

10  Sometimes  the  jury  will  be  excluded  from  the  room  while  the 
court  hears  the  testimony  as  to  the  confession  for  the  purpose  of 
determining  whether  or  not  it  is  voluntary.  State  v.  Drake,  82  N. 
C.  592. 

11  Williams  v.  State,  72  Miss.  117,  121,  122,  16  South.  296. 

12  Com.  V.  Howe,  9  Gray  (Mass.)  110. 


154  CONFESSIONS.  (Ch.  7 

it  is  voluntary.  If  no  evidence  is  introduced  as  to  the  circum- 
stances under  which  the  confession  was  made,  it  would  seem 
that  it  should  be  excluded.  The  making  of  a  confession  by  a 
person  accused  of  crime  is  not  such  a  common  and  natural 
occurrence  as  to  justify  the  court  in  assuming  without  evi- 
dence that  it  was  voluntarily  made,  and  allowing  its  use,  un- 
less the  question  is  raised  by  the  defense.^' 


86.  In  considering  •whetlier  or  not  a  confession  is  voluntary, 
the  internal  vrorkings  of  the  mind  of  the  accused  can- 
not be  examined.  If,  as  a  matter  of  fact,  it  appears 
that  no  outside  influence,  either  by  way  of  threat  or 
promise,  has  induced  the  confession,  the  court  firill 
not   inquire   further. 

For  instance,  the  accused,  when  he  himself  opens  negotia- 
tions to  become  a  witness  for  the  state,  and  pursuant  to  such 
arrangement,  makes  a  confession,  cannot  afterwards,  if  he 
change  his  mind  as  to  testifying  against  his  accomplice,  object 
to  the  use  of  the  confession  on  the  theory  that  he  was  induced 
to  make  the  confession  by  the  promise  of  immunity.^*  The 
mere  presence  of  an  officer  at  the  time  the  confession  is  made 

1 3  Beckham  v.  State,  100  Ala.  15,  14  South.  8-59.  See,  also,  State  v. 
Staley,  14  Minn.  105  (Gil.  75).  The  Massachusetts  doctrine  seems  to 
be  contra.    Com.  v.  Sego,  125  Mass.  210,  213. 

1*  A.  and  X.  are  indicted  for  the  murder  of  M.  A.  confesses  orally 
to  B.,  on  the  promise  of  B.  that  he  will  endeavor  to  get  him  admitted 
to  be  a  witness  for  the  state.  Subsequently,  B.  applies  to  the  attorney 
general,  and  procures  the  necessary  protection  for  A.  as  a  witness  foi* 
the  state.  A.  then  malves  a  full  written  confession.  Subsequently,  A. 
refuses  to  testify  against  X.;  and,  upon  his  own  trial,  his  verbal 
confession  and  the  written  one  are  offered  against  him.  Is  either 
of  them  admissible?  Putnam,  J.,  says:  "He  had  solicited  and  ob- 
tained the  protection  of  the  government,  and  was  at  liberty  to  accept 
it  on  those  terms,  or  to  stand  upon  his  defense.  We  cannot  perceive 
how  the  prisoner,  thus  situated,  could  have  any  motive  falsely  to  ac- 
cuse himself,  although  he  might  have  a  motive  to  continue  his  false 
accusation  against  his  accomplices.  And  besides,  if  any  such  motive 
could  be  supposed  to  operate,  it  was  a  new  motive,  and  not  arising 
from  external  influence.  And  it  is  no  objection  to  the  admission  of  a 
confession  that  it  was  made  from  interested  motives,  and  with  the 
hope  of  favor,  if  the  motive  is  not  excited  by  external  influence." 
Com.  v.  Knapp  (1850)  10  Pick.  (Mass.)  477,  20  Am.  Dec.  534. 


§§  87-88)  THREATS   OR   INDUCEMENTS.  155 

will  not  render  it  involuntary,*®  or  even  the  fact  that  .it  was 
made  to  an  officer.^® 


rUBIClAL    COMPUIiSION. 

87.  Amy  element  of  judicial  compulsion  i^ill  render  a  confes- 

sion involuntary  and  inadmissible,  tliough.  tliere  be  no 
threat  or  promise. 

Statements  made  by  the  accused  under  oath  before  a  judi- 
cial officer  or  body,  without  a  knowledge  of  his  rights,  have  an 
element  of  compulsion  about  them  which  precludes  the  idea  of 
their  being  voluntary. ^'^  Statements  made  under  such  circum- 
stances are  objectionable  also  on  the  ground  that  their  use 
would,  in  effect,  be  compelling  the  accused  to  testify  against 
himself.  They  may  not  amount  to  a  confession  induced  by 
threat  or  promise,  but  to  something  even  more  objectionable, 
namely,  a  confession  procured  by  judicial  compulsion. 

THREATS  OR  INDUCEMENTS. 

88.  An   inducement  or   tbreat,   in   order  to  vitiate   a   confes- 

sion, must  come  from  a  person  in  authority,  and  must 
have  some  relation  to  the  crime  charged. 

By  a  person  in  authority  is  meant  some  one  who  has  the 
right  or  power  to  fulfill  the  promise  or  carry  out  the  threat. 
The  court  cannot  undertake  to  examine  into  all  the  collateral 
circumstances  surrounding  a  confession.  A  person  may  be 
persuaded  by  friends,  by  a  religious  adviser,  or  by  an  attorney 
to  make  a  statement  of  the  facts  which  may  amount  to  a  con- 
fession, and  such  statement,  if  not  privileged,  by  reason  of  the 
relation  between  the  accused  and  the  party  to  whom  it  is  made, 
may  be  used.  For  example,  X.,  who  is  charged  with  the  mur- 
der of  A.,  is  induced  by  the  chaplin  of  the  jail  to  confess  his 
sins.     He  accordingly  confesses  the  crime  with  which  he  is 

15  Pierce  v.  U.  S.,  IfiO  U.  S.  355,  16  Sup.  Ct.  321,  40  L.  Ed.  454. 

16  People  V.  Wentz,  37  N.  Y.  303;  State  v.  Clifford.  36  Iowa,  550,  53 
N.  W.  299,  41  Am.  St.  Rep.  518. 

17  Kelly  V.  State,  72  Ala.  244-248. 


156  CONFESSIONS.  (Ch.  7 

charged.  It  has  been  held  that  such  a  confession  is  volun- 
tary.^** This  case  should  not  be  construed  as  an  authority  that 
a  clergyman  may  be  compelled  to  disclose  a  confession  made 
to  him.  It  does  not  appear  in  the  case  itself  by  whom  the  con- 
fession was  revealed.  To  be  admissible,  however,  it  is  neces- 
sary that  it  should  have  been  made  either  to  some  person  not 
standing  in  the  relation  of  a  religious  adviser,  or  to  have  been 
overheard  by  some  such  person.^^ 

89.  The  fact  tliat  threats  have  been  made  or  inducements 
have  been  offered  does  not  vitiate  the  confession  if 
it  is  made  without  regard  to  such  threats  or  induce- 
ments. 

It  sometimes  happens  that  it  is  sought  to  procure  a  confession 
from  a  person  by  threat  or  promise,  but  such  efforts  are  un- 
successful. Subsequently,  a  confession  is  made.  The  mere 
fact  that  the  threat  or  promise  has  been  made  does  not  vitiate 
the  confession  if  it  has  had  no  influence  upon  the  mind  of  the 
accused.^'*  But  it  must  clearly  appear  that  the  influence  sought 
to  be  exerted  by  the  previous  threat  or  inducement  has  ceased 
to  have  any  effect,  and  that  the  subsequent  confession  is  made 
without  reference  to  it.^^ 


90.  There  is  no  element  of  threat,  inducement,  or  compul- 
sion in  a  magistrate  taking  do^vn  a  confession  inhere 
he  makes  a  statement  to  the  accused  of  his  legal  po- 
sition, and  that  any  statement  he  may  make  v/ill  be 
used   against   him. 

18  Reg.  V.  Gilham,  1  Moody,  Crown  Cas.  186. 

19  X.  is  accused  of  cbild  murder.  X.,  who  is  a  servant  in  tlie  em- 
ploy of  A.,  is  induced  by  her  mistress  to  confess.  Sucti  confession  is 
admissible,  since  ber  mistress  is  not  a  person  in  authority.  Reg.  v. 
Moore,  2  Denison,  Crown   Cas.  522. 

2  0  X.  is  accused  of  the  murder  of  A.  M..  a  magistrate,  tries  to  get 
X.  to  confess  by  promise  of  pardon.  Before  the  confession  is  made,  M. 
finds  that  no  pardon  can  be  granted,  and  he  then  informs  X.  of  this 
fact.  Subsequently  X.  maizes  a  confession.  The  confession  has  been 
held  voluntary.    Reg.  v.  Clewes,  4  Car.  «&;  P.  221. 

21  Com.  V.  Myers,  160  Mass.  530,  36  N.  E.  481;  State  v.  Drake,  82 
N.  C.  592,  596. 


§  91)  THREATS   OR   INDUCEiMENTS.  157 

It  is  quite  common  to  inform  the  accused  upon  his  arrest 
that  "he  need  not  say  anythins^  to  criminate  himself,  and  that 
what  he  does  say  will  be  taken  down  and  used  as  evidence 
against  him."  Where  this  is  done,  and  the  prisoner  then 
chooses  to  make  a  statement,  it  is  admissible  against  him,  and 
the  mere  fact  that  it  is  made  to  a  magistrate,  while  the  ac- 
cused is  under  arrest,  does  not  make  it  involuntary.^^ 

Where  the  defendant  submits  himself  to  examination  at 
an  inquest  or  preliminary  hearing,  he  of  course  subjects  him- 
self to  cross-examination.  It  has  sometimes  happened  that 
a  severe  cross-examination  has  elicited  statements  from  an 
accused  person  in  the  nature  of  confessions,  or  at  least  of  ad- 
missions, from  which  an  inference  of  guilt  might  be  drawn. 
The  question  then  arises  whether  these  statements  may  be  used 
upon  the  trial  of  the  accused.  When  the  cross-examination  has 
been  unusually  severe,  so  as  to  savor  of  brow-beating  or  com- 
pulsion, it  has  been  held  that  admissions  made  could  not  be 
considered  as  freely  and  voluntarily  made,  and  that  they 
would,  therefore,  be  excluded.^^ 


91.  Confessions  procured  by  deception  or  under  promises  of 
secrecy  are  not,  on  tiiis  account  alone,  rendered  inad- 
missible. 

This,  of  course,  applies  to  confessions  which  otherwise  sat- 
isfy the  conditions  prescribed  for  admissibility.  A  friend  who, 
for  the  purpose  of  obtaining  a  confession,  promises  to  keep  it 
secret,  may,  nevertheless,  testify  in  regard  to  it.  Deception 
alone  will  not  render  a  confession  inadmissible.  It  might  seem 
that,  in  fairness  to  the  accused,  a  confession  obtained  by  fraud 
or  artifice  should  not  be  used  against  him.  As  the  ultimate  ob- 
ject in  view,  however,  is  the  truth  as  to  the  facts  charged,  and 
as  deception  of  this  sort  is  not  likely  to  affect  the  reliability  of 
a  confession,  it  has  not  been  held  to  render  it  inadmissible,^* 

22  Reg.  V.  Baldry  (1852)  2  Denison,  Crown  Cas.  430;  People  v.  Chap- 
leau,  121  N.  Y.  2GG,  24  N.  E.  4(19 ;    State  v.  Branham,  1.3  S.  C.  389. 

2  3  Parker  v.  State,  46  Tex.  Cr.  R.  461,  80  S.  W.  1008,  108  Am.  St. 
Rep.  1021.  But  see,  contra,  Wilson  v.  U.  S„  162  U.  S.  613,  16  Sup.  Ct. 
895,  40  L.  Ed.  1090. 

24  People  V.  McCallam,  103  N.  Y.  587,  593.  9  N.  E.  502;    State  v. 


158  CONFESSIONS.  (Ch.  7 


CONFESSIONS   XJNDER   INFLUENCE   OF   LIQUOR. 

92.  Confessions  made  by  the  accused  'when  under  the  influ- 
ence of  liquor  are  not  thereby  rendered  inadmissible. 
The  extent  of  the  intoxication,  and  its  effect  upon  the 
mind,  are  questions  to  be  submitted  to  the  jury  \Fith 
the  confession,  and  to  be  considered  by  them  in  deter- 
mining its   \7eight. 

Any  condition  of  mind  which  renders  a  person  temporarily 
incompetent  would  make  his  statements  while  in  such  condition 
valueless,  and  while,  perhaps,  not  inadmissible  on  the  ordinary 
grounds  which  prevent  confessions  from  being  used,  still,  as 
they  are  of  no  value,  they  should  not  be  allowed  to  be  intro- 
duced. Thus,  words  spoken  in  sleep  are  held  to  be  inadmissi- 
ble.^^ If  it  appears  that  one  is  so  intoxicated  as  to  be  inca- 
pable of  understanding  what  he  says  or  does,  his  confession 
should  not  be  used  against  him.^^  The  question  as  to  the 
mental  condition  of  the  accused  at  the  time  of  the  making  of 
the  confession  is  held  to  be  for  the  jury  to  determine  upon 
such  testimony  as  both  sides  may  submit,^''  though  it  is  prob- 

Walker,  98  Mo.  9.5,  11.3.  9  S.  W.  646,  and  11  S.  W.  113.3;  State  v.  Sta- 
ler, 14  Minn.  105,  11.3  (Gil.  75);  Burton  v.  State,  107  Ala,  108,  18 
South.  2S4;  Price  v.  State,  18  Ohio  St.  418;  Kin?  v.  State,  40  Ala.  314, 
320;  Rex  v.  Derrineton,  2  Car,  &  P.  418,  In  State  v.  Mitchell,  61  N. 
C.  447,  the  facts  were  as  follows:  X.,  arrested  for  murder,  said  to  A,, 
a  fellow  prisoner,  "What  in  hell  do  you  suppose  I  was  arrested  for?" 
A.  replied  he  did  not  know,  and  after  some  further  conversation  X, 
said,  "If  you  will  not  tell  on  me.  I  will  tell  you  something."  A.  replied 
that  he  would  not  tell,  but  that,  if  he  did,  it  would  make  no  difference, 
for  one  criminal  could  not  testify  against  another,  X.  then  said,  "1 
want  to  know  what  to  do."  and,  upon  A.  saying  that  if  he  knew  the 
circumstances  he  could  tell  him  what  to  do.  made  a  confession.  It 
was  held  that  the  confession  was  properly  admitted.  See,  for  a  some- 
what similar  case  of  a  confession,  made  upon  a  promise  not  to  tell, 
State  V.  Darnell,  Houst.  Cr.  Cas,  (Del.)  321. 

In  Com.  V.  Cressinger,  193  Pa.  326.  44  Atl,  433,  the  defendant  con- 
fessed, after  having  been  led  to  believe  that  the  knife  with  which 
the  crime  had  been  committed  had  been  found.  The  confession  was 
held  admissible.  But  see  Bram  v.  U.  S..  168  U.  S,  5.32.  18  Sup.  Ct. 
183,  42  L.  Ed.  568 ;   Com,  v.  Myers,  160  Mass.  530,  36  N.  E.  481. 

2  5  People  v.  Robinson,  19  Cal.  40. 

2e  Com.  V.  Howe,  9  Gray  (Mass.)  110;   Eskrldge  v.  State,  25  Ala.  30. 

2  7  Jefferds  v.  People,  5  Parker,  Cr.  R.  (N.  Y.)  .522.  561.    Also,  Com. 


§  93)  EVIDENCE   IN    FORMER   PROCEEDING.  159 

able  that  in  a  case  where  there  was  no  conflict  as  to  the  ac- 
cused's mental  incapacity  at  the  time  of  the  confession  the  court 
would  not  submit  the  confession  to  the  jury  at  all. 


EVIDENCE   IN   FORMER   PROCEEDING. 

93.  Evidence  given  by  the  accnsed  in  a  former  proceeding  or 
trial  may  be  used  as  a  confession,  unless  lie  'was  im- 
properly  compelled   to   testify. 

The  mere  fact  that  the  statement  sought  to  be  used  as  a 
confession  has  been  given  at  a  former  trial  and  under  oath 
does  not  render  it  inadmissible,  unless  the  circumstances  have 
been  such  as  to  have  made  it  involuntary.  AMiile,  in  one  sense, 
a  witness  under  subpt^ena  may  be  said  to  be  compelled  to  testi- 
fy, it  is  not  in  any  sense  that  renders  his  testimony,  if  of  a 
self-incriminatory  nature,  involuntary ;  for  any  witness  may 
refuse  to  give  testimony  Avhich  might  tend  to  incriminate  him. 
If  he  does  not  avail  himself  of  this  privilege,  he  cannot  com- 
plain of  his  testimony  being  used  as  a  confession  on  the  ground 
that  it  was  not  voluntary.^*  If  the  court  has  compelled  him 
to  testify  after  he  has  asserted  his  privilege,  this  will  make 
the  testimony  involuntary,  and  it  cannot  be  used  as  a  con- 
fession on  any  subsequent  trial. 

Where,  at  a  preliminary  hearing  before  a  magistrate  or 
coroner,  after  the  arrest  of  the  accused,  he  is  summoned  as  a 
witness,  the  failure  to  inform  him  of  his  right  to  refuse  to 
testify  as  to  anything  which  may  tend  to  criminate  him  is  suffi- 
cient to  render  any  testimony  he  may  give  inadmissible  on  his 
trial.-®    In  such  a  case  it  is  not  necessary  that  the  accused  as- 

T.  Howe,  supra:  State  v.  Feltes.  51  Iowa.  405.  501,  1  N,  W.  755;  State 
V.  Grear.  2S  Miun.  42G.  10  N.  W.  472,  41  Am.  Rep.  296. 

2  8  Com.  V.  Reynolds.  122  Mass.  454.  45S;  People  v.  Chapleau.  121 
N.  Y.  266.  276.  277.  24  N.  E.  469;  Anderson  v.  State.  26  Ind.  SO :  Dick- 
erson  v.  State.  4S  Wis.  2S8.  292,  4  N.  W.  321;  Hill  v.  State.  64  Miss. 
431,  440,  1  South.  494.  Where  one  accused  of  murder  went  on  the 
stand  in  his  own  behalf,  and  his  cross-examination  tended  to  show  he 
had  been  guilty  of  the  crime  of  adultery,  for  which  crime  he  was 
afterwards  indicted  and  tried,  such  cross-examination  was  held  com- 
petent against  him.     State  v.  Withara.  72  ^le.  531.  533.  534. 

29  People  V.  Moudou,  103  N.  Y.  211,  S  N.  E.  496.  57  Am.  Rep.  709. 


160  CONFESSIONS.  (Ch.  7 

sert  his  privilege  in  order  to  be  protected.  If,  however,  the 
accused  was  summoned  as  a  witness  before  it  was  ascertained 
that  any  crime  had  been  committed,  and  before  any  arrest  had 
been  made,  the  fact  that  he  is  afterwards  arrested  does  not 
change  his  character  as  a  mere  witness  whose  statements  will 
be  considered  voluntary  unless  he  himself  claims  his  privi- 
lege.^" 

WHOLE   CONFESSION  MUST  BE  INTRODUCED. 

94.  Where  a  confession  is  used  against  an  accused  person,  the 

'whole  confession  must  be  introduced. 

This  rule  is  founded  upon  justice  to  the  accused  person. 
It  is  merely  common  fairness  in  the  case  of  the  introduction  of 
a  confession  to  require  that  everything  that  has  been  said  by 
the  accused  in  connection  therewith,  which  may  qualify  or  ex- 
plain the  confession,  be  introduced. ^^  The  mere  fact  that  the 
accused  has  been  interrupted,  and  therefore  has  not  stated  all 
that  he  might  have  stated,  does  not,  however,  render  what  he 
has  stated  inadmissible  as  a  confession.^ ^  Nor  does  the  fact 
that  the  witness  overheard  only  a  portion  of  a  conversation 
render  what  he  heard  inadmissible,  provided  it  was  a  complete 
confession  of  guilt.^^ 

CONFESSIONS  MAY  BE  EXPLAINED. 

95.  A  confession,  like  an  admission,  is  alvirays  open  to  expla- 

nation by  the   person  against   T^hom   it  is  used. 

A  confession  is  of  the  same  character  as  an  admission,  in 
that  it  constitutes  a  waiver  of  proof,  rather  than  proof  itself. 

30  Hendrlckson  v.  People,  10  N.  Y.  13,  61  Am.  Dec.  721;  D.  S.  v. 
Charles,  2  Cranch,  0.  C.  (U.  S.)  76,  Fed.  Cas.  No.  14,786 ;  State  v.  Gil- 
man.  51  Me.  206;  Com.  v.  King,  8  Gray  (Mass.)  501;  Alston  v.  State, 
41  Tex.  39. 

31  Berry  v.  Com.,  10  Bush  (Ky.)  15;  People  v.  Gelabert,  39  Cal.  60?,; 
McAdory  v.  State,  62  Ala.  154,  160. 

32  Levison  v.  State,  54  Ala.  520. 

3  3  Com.  V.  Pitsinger,  110  Mass.  101;  McAdory  v.  State,  62  Ala.  154, 
100. 


§  96)      EVIDENCE  OBTAINED  AS  RESULT  OF  CONFESSION.         161 

The  accused  person,  therefore,  should  have  every  right  to  ex- 
plain or  qualify  the  confession,  so  as  to  throw  upon  the  prose- 
cution the  ordinary  burden  of  proving,  by  evidence  of  the  or- 
dinary kind,  the  crime  charged.^* 

As  to  the  sufficiency  of  a  confession  to  establish  the  guilt 
of  the  accused,  it  is  now  generally  held  that  there  must  be 
corroborating  evidence  of  some  sort,  either  direct  or  circum- 
stantial.^ ° 


EVIDENCE  OBTAINED  AS  RESULT  OE  CONFESSION. 

96.  Evidence  whicli  has  been  obtained  as  a  result  of  a  confes- 
sion is  not  rendered  inadmissible  from  the  fact  that 
the  confession  itself  has  been  obtained  under  circum- 
stances which  render  it  inadmissible. 

Since  the  theory  which  excludes  certain  sorts  of  confessions, 

i.  e.,  that  their  reliability  is  doubtful— has  no  application  to 

evidence  which  is  independent  of  the  confession,  it  matters 
not  that  such  evidence  has  been  obtained  through  a  confession 
which  has  been  procured  by  threat  or  promise.  Discovery 
may  be  made  of  the  whereabouts  of  stolen  goods,  or  of  the 
disposition  of  the  body  of  a  murdered  person,  or  of  other 
material  facts,  through  a  confession ;  and,  while  the  confession 
itself  could  not  be  used,  evidence  as  to  the  finding  of  the  goods 
or  the  disposition  of  the  body  is  admissible.^^     And  it  seems 

34  state  V.  Brown,  1  Mo.  App.  86.  Horton,  in  his  work  on  Criminal 
Evidence  (paragraph  623),  says:  "A  confession  is  rather  a  fact  to  be 
proved  by  evidence  than  evidence  to  prove  a  fact." 

35  Blaclver  v.  State  (Neb.)  105  N.  W.  302;  Bergen  v.  People,  17  111. 
426,  65  Am.  Dec.  672. 

3  6  Rex  V.  Wariclishall  (1783)  1  Leach  (4th  Ed.)  263.  X.  and  Y.  were 
jointly  indicted  for  grand  larceny,  and  Y.  was  also  indicted  as  ac- 
cessory after  the  fact  for  having  received  the  stolen  goods.  Y.  made 
a  fuirconfession,  under  promise  of  favor.  In  consequence  of  the  con- 
fession, the  property  was  found,  between  the  sacliings  of  her  bed. 
Assuming  the  confession  itself  to  have  been  inadmissible,  is  the  fact 
that  the  property  was  found  in  her  possession  admissible?  The  court 
say:  "It  is  a  mistaken  notion  that  the  evidence  of  confessions  and 
facts  which  have  been  obtained  from  prisoners  by  promises  or  threats 
is  to  be  rejected  from  a  regard  to  public  faith;  no  such  rule  ever  pre- 
vailed.   *    *    *    This  principle  respecting  confessions  has  no  applica- 

m'kelv.ev.(2d  ED.)— 11 


162  CONFESSIONS.  (Ch.  7 

that,  where  the  fact  has  been  proved,  evidence  that  its  discov- 
ery was  the  result  of  a  statement  made  by  the  prisoner  is  ad- 
missible.^^ In  other  words,  the  fact  of  the  prisoner's  knowl- 
edge of  and  statement  as  to  the  existence  of  the  fact  discovered 
is  itself  circumstantial  evidence  which  cannot  be  shut  out  un- 
der the  ordinary  rule  against  involuntary  confessions. 

tion  whatever  as  to  the  admission  or  rejection  of  facts,  whether  the 
knowledge  of  them  be  obtained  in  consequence  of  an  extorted  con- 
fession, or  whether  it  arises  from  any  other  source;  for  a  fact,  if  it 
exist  at  all,  must  exist  invariably  in  the  same  manner  whether  the 
confession  from  which  it  be  derived  be  in  other  respects  true  or  false." 
U.  S.  V.  Richard,  2  Cranch,  C.  C.  (U.  S.)  439,  Fed.  Cas.  No.  16,154; 
Duffy  V.  People,  26  N.  Y.  588,  590;  Gates  v.  People,  14  111.  433,  437; 
Lowe  V.  State,  88  Ala.  8,  7  South.  97.  In  State  v.  Graham,  74  N.  C. 
646,  21  Am.  Rep.  493,  X.  was  on  trial  for  larceny  for  stealing  corn 
from  a  field.  It  appeared  in  evidence  that  fresh  tracks  of  a  single 
person  were  discovered  in  the  field,  leading  from  stalk  to  stalk;  that 
new  corn  was  found  under  X.'s  bed,  and  that  the  officer  who  arrested 
him  took  him  to  the  field  where  the  corn  was  stolen;  and  the  prose- 
cution offered  to  show  that  the  officer  compelled  him  to  put  his  foot 
in  the  tracks,  and  that  it  corresponded  therewith.  This  testimony 
was  objected  to  on  the  ground  it  was  m  the  nature  of  a  confession 
obtained  under  duress.  The  court  admitted  it  as  a  piece  of  circinn- 
stantial  evidence.  In  State  v.  Garrett,  71  N.  C.  85,  17  Am.  Rep.  1, 
X..  a  girl,  charged  with  murder  of  A.,  a  young  girl  14  years  old,  claimed 
that  A.  had  been  accidentally  burned,  and  that  she  (X.)  had  had  her 
hand  burned  in  trying  to  put  out  the  flames.  At  the  coroner's  inquest, 
after  a  verdict  had  been  rendered  charging  X.  with  the  murder,  she 
was  compelled  by  the  coroner  to  unwrap  her  hand,  and  exhibit  it  to 
a  physician.  No  traces  of  burn  were  found.  At  the  trial  of  X.  the 
testimony  of  the  physician  was  offered.  It  was  objected  to  on  the 
ground  that  nothing  she  had  said  or  done  under  the  compulsion  of  the 
coroner  could  be  received,  not  having  been  cautioned  and  informed 
of  her  rights.     The  court  ruled  that,  while  nothing  she  had   said 

3  7  Com.  V.  Knapp,  9  Pick.  (Mass.)  496,  511,  20  Am.  Dec.  491;  Laros 
V.  Com.,  84  Pa.  200,  209;  State  v.  Vaigneur,  5  Rich.  Law  (S.  C.)  391, 
404;  Fredrick  v.  State,  3  W.  Va.  695;  White  v.  State,  3  Heisk.  (Tenn.) 
338;  Lowe  v.  State,  88  Ala.  8,  7  South.  97;  Weller  v.  State,  16  Tex. 
App.  200,  211.  In  Com.  v.  .lames,  99  Mass.  438,  the  view  seems  to 
have  been  taken  that,  while  the  fact  of  the  prisoner  having  made  a 
statement  in  consequence  of  which  a  hatchet  with  which  it  was  claim- 
ed the  murder  charged  had  been  committed  was  admissible,  the  sub- 
stance of  such  statement  was  not.  See,  also,  Yates  v.  State,  47  Ark. 
172,  1  S.  W.  65;  Belote  v.  State,  36  Miss.  96,  118,  72  Am.  Dec.  163; 
Beery  v.  U.  S.,  2  Colo.  186,  212. 


§  97)  IMPLIED   CONFESSIONS.  163 


IMPLIED    CONFESSIONS. 

97.  Confessions  by  conduct  and  so-called  "implied  confes- 
sions" are  not  subject  to  the  rules  relating  to  confes- 
sions. 


Evidence  as  to  the  conduct  of  an  accused  person  is  original 
evidence,  from  which  there  may  be  an  inference  of  guilt.^* 
Such  evidence  usually  relates  to  his  attitude  or  conduct  in  the 
presence  of  circumstances  which  would  naturally  affect  his 
actions  in  a  certain  manner,  or  of  statements  made  in  his  pres- 
ence, which  would  naturally  call  for  denial. ^^     The  general 

could  be  admitted,  the  condition  of  her  hand  as  a  fact  could  be  shown. 
See  People  v.  McCoy,  45  How.  Prac.  (N.  Y.)  216,  for  a  case  which 
holds  that  evidence  obtained  in  this  way  is  inadmissible  on  the  ground 
that  it  is,  in  effect,  compelling  the  accused  to  testify  against  himself. 
In  U.  S.  V.  Wong  Quong  Wong  (D.  C.)  94  Fed.  832,  where  private  let- 
ters of  defendant  had  been  opened  wrongfully  by  customs  officials, 
it  was  held  that  they  were  inadmissible;  the  ground  taken  being 
that  the  evidence  was  obtained  in  violation  of  the  fourth  and  fifth 
amendments  to  the  Constitution.  But  it  seems  that  they  might  well 
have  been  held  inadmissible  on  the  other  ground  that  to  admit  them 
would  be  compelling  the  accused  to  testify  against  himself.  For  some 
observations  on  this  case,  and  for  other  citations,  see  13  Har.  Law 
Rev.  302. 

38  In  State  v.  Edwards,  13  S.  C.  30,  evidence  of  this  sort  was  dis- 
tinguished from  confessions.  The  following  charge  was  held  erro- 
neous :  "That,  if  a  party  hears  a  criminal  charge  against  himself,  and 
made  in  his  presence,  and  says  nothing,  it  is  an  admission  on  his 
part,  and  in  the  eye  of  the  law  the  party  accepts  that  charge  as  his 
confession."  The  court  say  (page  32):  "The  effect  of  this  charge  was 
to  give  the  silence  of  the  parties  the  legal  force  and  effect  of  confes- 
sion of  guilt.  It  must,  in  this  respect,  be  distinguished  from  the  prop- 
osition that  the  conduct  of  the  parties  under  accusation  of  crime  may 
be  given  to  the  jury  as  circumstances  to  be  weighed  in  connection  with 
the  question  of  guilt  or  innocence."  See,  also.  State  v.  Hill,  134  Mo. 
663.  36  S.  W.  223. 

39  Kelley  v.  People,  55  N.  Y.  565,  14  Am.  Rep.  ?A2.  Upon  the  trial  of 
X.  for  larceny  of  money  from  A.,  A.  was  taken  by  an  officer  to  the 
station  house,  to  identify  X.,  and  when  confronted  with  X.  identified 
him,  and  stated  the  circumstances  of  the  theft,  and  gave  a  descrip- 
tion of  the  money  stolen.  X.  was  searched,  and  two  rolls  of  money 
were  found,  one  of  which  answered  A.'s  description.  X.  during  all 
this  time  remained  silent,  but,  when  the  money  was  found,  asked 
to  have  the  roll  not  described  by  A.  kept  separate,  saying  it  was  bar 


164  CONFESSIONS.  (Ch.  7 

doctrine  is  that  such  statements  and  the  accused's  conduct  in 
reference  thereto  are  not  admissible  unless  the  circumstances 
under  which  they  are  made  are  such  that  he  is  at  liberty  to 
make  a  reply  without  prejudice  to  himself,  and  that  a  reply  is 
naturally  called  for  unless  he  intends  to  admit  their  truth.*'' 

money.  Such  conduct  by  X.  is  competent  evidence  on  the  question  of 
his  guilt.  To  the  same  effect  are  State  v.  Reed,  62  Me.  129,  141; 
Murphy  v.  State,  36  Ohio  St.  628;  Garrett  v.  State,  76  Ala.  18;  State 
V.  Bowman,  80  N.  C.  432,  437;  People  v.  Mallon,  103  Cal.  513,  37 
Pac.  512. 

4  0  Com.  V.  Brown,  121  Mass.  69,  80.  For  example,  where  the  state- 
ments are  made  by  a  witness  in  a  former  proceeding  in  the  presence 
of  the  accused,  he  is  neither  at  liberty  to  make  a  denial  nor  would  it 
be  proper  for  him  to  do  so.  His  silence,  under  such  circumstances, 
cannot  be  used  against  him.  Broyles  v.  State,  47  Ind.  251.  On  the 
trial  of  X.  for  abortion,  the  question  of  X.'s  violence  towards  his  wife 
became  material.  The  prosecution  offered  to  show  that  in  a  prear- 
ranged interview  between  X.  and  his  wife  at  the  house  of  his  father- 
in-law  X.  made  no  denial  of  the  charges  of  violence  made  against 
him  by  the  father-in-law.  It  appeared  that,  as  a  condition  of  the  in- 
terview, X.  had  promised  to  keep  his  temper,  and  be  on  his  good  be- 
havior. It  was  held,  under  these  circumstances,  his  silence  could  not 
be  used  against  him.    Slattery  v.  People,  76  111.  217. 


98) 


MATTERS    UNIMPORTANT    OR   MISLEADING. 


165 


CHAPTER  VIII. 

MATTERS   EXCLUDED  AS   UNIMPORTANT,  OR  AS  MISLEAD- 
ING, THOUGH  LOGICALLY  RELEVANT. 

98.  Logical  Relevancy  as  Affecting  Admissibility. 

99.  Distinction  Between  Logical  and  Legal  Relevancy. 
100     Losical  Relevancv  the  Main  Ground  of  Admissibility. 

101.  Rule  Excluding  Unimportant  and  Misleading  Matters 

102.  Difficulty  of  Classification  of  Matters  Excluded  Under 

Rule  Given. 

103.  Res  Inter  Alios  Acta. 

104^105.     Relation  of  Other  Sales  to  Proof  of  Value. 

106.  Collateral   Acts   Inadmissible   Upon   Question   of   Negli- 

gence. 

107.  When  Admissible. 

108.  Subsequent  Acts  of  Precaution. 

109.  Other  Acts  of  Defendant. 

110.  Effect  of  Same  Act  on  Other  Persons. 

111.  Proof  as  to  Dangerous  Character  of  Obstruction  or  Ex- 

cavation. 

112.  As  to  Defective  Machinery  or  Appliance. 

113.  Proof  as  to  Kinds  of  Appliances  Used  by  Others  in  Same 

Line. 

114.  Evidence  of  One  Crime  Not  Admissible  to  Prove  Another. 
115-115y2'     Proof  as  to  Intent,  Motive  or  Physical  or  Mental  State. 


LOGICAL  RELEVANCY  AS  AFFECTING  ADMISSIBILITY. 

98.  Logical  relevancy  is  tlie  first  essential  to  the  admissibiUty 
of  all  evidence.  Only  that  whicli  is  logically  relevant 
is  admissible. 

Stephen  defines  the  word  "relevant"  as  meaning  "that  any 
two  facts  to  which  it  is  applied  are  so  related  to  each  other 
that,  according  to  the  common  course  of  events,  one,  either 
taken  by  itself  or  in  connection  with  other  facts,  proves  or 
renders  probable  the  past,  present,  or  future  existence  or  non- 
existence of  the  other."  ^  This  is  a  definition  of  logical  rele- 
vancy. Logical  relevancy  plays  a  certain  part  in  the  law  of 
evidence,  in  that  no  evidence  is  admissible  unless  it  is  logically 

1  Steph.  Dig.  Ev.  art.  1. 


166  MATTERS    UNIMPORTANT    OR   MISLEADING.  (Ch.  8 

relevant.  It  does  not  follow  that  all  evidence  which  is  logically 
relevant  is  admissible,  and  in  fact  much  that  is  logically  rele- 
vant is  excluded.  Certain  rules  are  laid  down,  founded  on 
various  considerations,  by  which  many  matters  which  are  log- 
ically relevant  are  declared  inadmissible. 


DISTINCTION  BETWEEN  LOGICAL  AND   LEGAL  RELE- 
VANCY. 

99.  Legal  relevancy  is  not  difFerent  in  its  nature  from  logical 
relevancy.  The  only  distinction  is  in  its  field  of  ap- 
plication. Legal  relevancy  is  the  attribute  of  all 
those  logically  relevant  matters  Ttrhich  are  not  declared 
inadmissible  by  one  or  more  of  the  excluding  rules. 

Stephen  proceeds  upon  the  theory  that  logical  relevancy  is 
the  main  condition  of  admissibility,  and  that  all  rules  exclud- 
ing evidence  which  is  logically  relevant  are,  therefore,  excep- 
tions to  the  general  rule.  Other  writers  ^  have  distinguished 
between  logical  and  legal  relevancy,  finding  the  latter  to  apply 
to  all  those  facts  which  are  not  excluded  by  any  of  the  ex- 
cluding rules  of  evidence.  But  if  what  is  legally  relevant  can 
only  be  determined  by  this  exclusionary  method,  it  is  of  little 
use  to  retain  the  term. 


LOGICAL  RELEVANCY  THE  MAIN  GROUND  OF  ADMIS- 
SIBILITY. 

100.  In  general,  it  may  be  said,  that  xrhat  is  logically  rel- 
evant is  admissible,  unless  it  comes  Tv^ithin  the  terms 
of  one  or  more  of  the  rules  of  exclusion.  These  rules 
of  exclusion  make  up  the  bulk  of  the  law  of  evidence. 

This  rule  follows  from  what  has  been  said  above,  and  this 
and  the  following  chapters  will  be  taken  up  mainly  with  the 
rules  which  exclude  matters  logically  relevant.  In  this  chapter 
will  be  grouped  together  a  certain  number  of  matters,  logically 
relevant,  which  the  courts  have  excluded  on  various  grounds 
of  policy;    matters  which  cannot  be  brought  within  any  one 

2  Best,  Ev.  p.  251. 


§§  101-102)  DIFFICULTY    OF   CLASSIFICATION.  167 

general  rule,  and  which  rest  largely  in  the  discretion  of  the 
court  passing  upon  them. 


RUI.E  EXCLUDING  UNIMPORTANT  AND  MISLEADING 

MATTERS. 

101.  Certain  matters  xp-hicli  are  relevant  are  excluded  because, 
although  relevant,  they  are  "likely  to  mislead  the  jury, 
or  to  complicate  the  case  unnecessarily;  or  are  of  too 
slight,   remote,   or  merely   conjectural   significance." 

In  treating  of  these  matters  it  is  necessary  to  bear  in  mind 
certain  facts  relating  to  the  constitution  of  our  courts  and  their 
methods  of  proceeding.  The  object  of  a  trial  is  the  ascertain- 
ment of  the  truth  of  the  facts  in  issue  between  the  parties,  to 
the  end  that  justice  may  be  rendered.  All  things  are  to  be 
made  subservient  to  this  object.  There  are  considerations, 
however,  which  must  govern  the  proceedings  of  the  court  in 
the  carrying  on  of  its  business ;  considerations  which,  if  lost 
sight  of  in  any  one  case,  would  certainly  affect  the  ability  of 
the  court  to  serve  its  purpose.  These  considerations  consist 
of  (1)  a  due  regard  for  the  limitations  of  the  human  mind  in 
the  consideration  of  disputed  questions ;  (2)  the  tendency  of 
minds,  untrained  to  look  at  facts  from  a  purely  legal  stand- 
point, to  be  influenced  in  their  conclusions  by  sympathies  and 
prejudices ;  (3)  the  limitations  of  time  as  compared  with  the 
multitudinous  interests  confided  to  the  court  for  disposition. 
These  considerations  are  the  basis  of  the  rule  of  exclusion 
above  stated. 


DIFFICULTY  OF  CLASSIFICATION  OF  MATTERS  EXCLUD- 
ED  UNDER  RULE  GIVEN 

102.  The  only  classification  possible  of  matters  excluded  un- 
der the  principles  of  this  chapter  is  the  statement  ol 
certain  lines  of  inquiry  Avhich  the  courts  have,  in  th( 
decided  cases,  declared  inadmissible. 

There  are  no  hard  and  fast  rules  which  will  fix  upon  cer- 
tain facts  the  character  of  being  too  remote  or  misleading 
There  are  things,  however,  which  are  so  clearly  beyond  the  lim- 


168  MATTERS    UNIMPORTANT    OR    MISLEADING.  (Ch.  8 

it  that  no  difficulty  is  experienced  in  applying  the  rule  of  exclu- 
sion. Take  a  case,  for  instance,  such  as  arose  recently,  where 
the  defendant,  a  railway  company,  in  support  of  its  defense  to 
an  action  for  injuries  to  the  plaintiff  by  reason  of  a  collision, 
offered  evidence  that  other  passengers  had  not  complained  of 
having  been  injured  in  the  accident  and  that  none  had  made 
claim  against  defendant  on  account  of  the  injuries.  While 
it  is  conceivable  that  such  evidence  might  have  some  remote 
logical  relevancy,  or  at  least  might  suggest  a  very  weak  infer- 
ence with  respect  to  the  possibility  of  the  plaintiff  having  re- 
ceived injuries,  it  is  so  far  removed  from  the  kind  of  evidence 
which  we  are  accustomed  to  think  of  as  a  basis  for  inference, 
and  it  opens'  up  so  broad  a  field  of  collateral  matters,  as  to  be 
immediately  recognized  as  impossible  of  consideration.^ 

The  decision  as  to  whether  evidence  logically  relevant  is 
within  the  excluding  rule  laid  down  in  this  chapter  is  largely 
dependent  upon  the  facts  in  each  case  as  they  may  be  presented. 

Few  cases  are  as  clear  as  the  one  above  mentioned. 

Take  the  case  where,  in  an  action  for  causing  the  death  of 
A.,  the  defendant  offered  evidence  to  show  that  A.  was  stealing 
a  ride  on  the  train  and  fell  off  between  the  cars.  To  meet 
this,  and  as  evidence  of  the  fact  that  A.  was  walking  along 
the  track,  the  plaintiff  offered  evidence  that  A.  had  been  kicked 
and  shoved  off  another  of  defendant's  trains  about  an  hour 
before  the  accident  in  which  he  had  been  killed.  Here  the 
evidence  doubtless  had  a  certain  probative  force,  and  per- 
haps no  fault  can  be  found  with  the  court  for  admitting  it,  al- 
though it  is  very  near  the  line.^ 

8  Foss  V.  Railway  Co.,  73  N.  H.  246,  60  Atl.  747. 

*  Knoxville,  C.  G.  &  L.  Ry.  Co.  v.  Wyrick,  99  Tenn.  500,  42  S.  W. 
434.  The  evidence  was  admitted  on  the  wrong  ground,  however,  as  it 
was  held  to  be  a  part  of  the  res  gestse,  or,  as  the  court  expressed  it, 
"a  part  of  the  history  of  the  case." 

To  show  an  expectancy  of  life  beyond  that  given  in  the  mortality 
tables,  a  plaintiff  offered  to  show  the  fact  that  his  father  and  grand- 
father had  lived  to  advanced  ages.  The  evidence  was  excluded. 
This  case  is  another  illustration  of  the  exclusion  of  evidence  which, 
while  imdoubtedly  of  logical  relevancy,  is  likely  to  raise  collateral 
inquiries,  which  may  consume  time,  and  confuse  the  issues.  Hamil- 
ton v.  Railroad,  135  Mich.  95,  97  N.  W.  392. 


§  103)  RES  INTER  ALIOS  ACTA.  1^^ 

A  single  matter,  it  may  happen,  will  be  objectionable  on  all 
the  grounds  mentioned  in  the  rule.  It  is  not  possible,  there- 
fore to  classify  these  matters  in  respect  to  the  grounds  of  ex- 
clusion. By  repeated  decisions,  however,  in  the  several  sub- 
jects of  the  law  which  have  occupied  the  courts,  certam  mat- 
ters have  become  recognized  as  falling  within  the  rule,  and  it 
is  therefore  by  examples  of  such  matters  that  the  best  explana- 
tion of  the  rule  may  be  given.  The  different  classes  of  mat- 
ters which  have  arisen  most  frequently,  and  in  respect  to  the 
admission  of  which  there  is  accordingly  some  sort  of  umform 
practice,  are  given  below. 

RES  INTER  ALIOS  ACTA. 

103.  The  term  "res  inter  alios  acta,"  while  it  includes  some 
of  the  matters  cohered  by  the  rule  of  exclusion  laid 
down  in  this  chapter,  also  covers  much  that  is  admis- 
sible. 

The  term  "res  inter  alios  acta"  has  been  applied  to  many 
matters  of  this  sort;    sometimes  correctly,  more  often  mcor- 
rectly     "Res  inter  alios  acta"  includes  a  part  of  those  matters 
which  are  logically  relevant,  and,  it  may  be,  have  a  strong  bear- 
ino-  upon  the  issues  in  the  case,  but  which  are  on  grounds  ot 
fafrness  excluded.    It  especially  applies  to  matters  which  have 
been  done  or  have  happened  at  other  times,  and  between  other 
parties  than  those  who  are  parties  to  the  issues.    Such  matters 
may  by  their  resemblance  to  the  acts  in  question,  and  their  re- 
lation to  the  parties,  form  a  basis  of  logical  inference,  but  the 
admission  of  them  would  lead  the  court  into  too  many  collateral 
inquiries  as  to  the  particular  circumstances  of  each  case,  and 
hence  the  general  rule  that  such  matters  are  inadmissible. 

5  In  an  action  by  A.  v.  X.  upon  a  promissory  note,  the  defense  was 
that  the  note  was  a  forgery.  X.  offered  evidence  to  show  that  A.  was 
in  the  habit  of  forging  signatures  by  a  method  of  gracing  them^^ith 
re'.pect  to  this  class  of  evidence  the  court  says:  "The  law  excludes 
such  evidence  upon  grounds  of  public  policy,  to  prevent  the  multipli- 
cation of  issues  in  a  case,  and  to  protect  a  P^.^^y  ^rom  the  injus  ce 
of  being  called  upon,  without  notice,  to  explain  the  acts  of  his  life 
not  shown  to  be  connected  with  the  offense  with  which  he  is  charged. 


170  MATTERS    UNIMPORTANT    OR   MISLEADING.  (Ch.  8 

For  example:  A.  brings  an  action  against  X.,  a  Catholic 
charitable  institution  in  which  A.  had  been  confined.  The  ac- 
tion was  for  false  imprisonment  and  cruel  treatment.  A.  of- 
fers evidence  of  the  beating,  by  X.'s  representatives  in  charge 
of  the  institution,  of  other  persons  who  were  inmates.  Such 
evidence  is  inadmissible,  as  raising  too  many  collateral  ques- 
tions, which  might,  in  order  to  enable  a  just  and  fair  inference 
to  be  drawn  from  the  circumstance,  have  to  be  the  subject  of 
proof.^ 

This  is  a  typical  illustration  of  that  kind  of  thing  known  as 
"res  inter  alios  acta,"  and  by  reason  of  its  nature  is  inadmis- 
sible.^ 

Costelo  V.  Crowell,  139  Mass.  588,  591,  2  N.  E.  698.  In  support  of 
the  same  principle  are  Boyd  v.  U.  S.,  142  U.  S.  4.50,  458,  12  Sup.  Ct 
292,  35  L.  Ed.  1077 ;  Newball  v.  Appleton,  102  N.  Y.  133,  6  N.  E.  120 ; 
Coleman  v.  People,  55  N.  Y.  81,  90 ;  Dodge  v.  Haskell,  69  Me.  429,  435 ; 
Aiken  v.  Kennison,  58  Vt.  665,  5  Atl.  757 ;  Benedict  v.  Rose,  24  S.  C. 
297 ;  Franklin  v.  Franklin,  90  Tenn.  44,  16  S.  W.  557 ;  State  v.  Mober- 
ly,  121  Mo.  604,  26  S.  W.  364;  Traverse  v.  State,  61  Wis.  145,  20  N. 
W.  724.  The  length  to  which  the  court  may  go  under  the  circum- 
stances of  a  particular  case  is  seen  in  Nickerson  v.  Gould,  82  Me. 
512,  20  Atl.  86.  Here  A.  sued  X.  on  a  promissory  note.  The  defense 
was  that  the  note  was  a  forgery,  and  that  X.  never  had  any  deal- 
ings with  M.,  the  payee,  out  of  which  the  note  could  have  resulted. 
As  bearing  on  the  probability  of  X.  having  given  the  note,  evidence 
was  allowed  showing  the  dealings  had  between  M.  and  X.  In  de- 
scribing their  dealings,  X.,  while  on  the  stand  as  a  witness,  stated  a 
certain  conversation  had  by  him  with  M.  in  refei-ence  to  the  note,  in 
which  M.  referred  to  past  dealings  alleged  to  have  been  had  by  him 
with  X.,  and,  among  other  things,  said,  "Don't  you  remember  my  pay- 
ing H.  $15  for  you?"  to  which  X.  replied,  "No,  sir;  I  don't  remember 
It,  and  you  never  did."  After  testifying  to  this  conversation,  X. 
called  H.  as  a  witness,  and  offered  to  prove  that  M.  never  in  fact 
had  paid  H.  $15.  This  item  was  not  one  claimed  by  the  plaintiff  as 
a  part  of  the  consideration  of  the  note.  The  court  excluded  the  tes- 
timony. On  appeal  it  was  held  that  it  should  have  been  admitted,  as 
showing  the  falsity  of  the  assertion  made  by  M.,  in  reference  to  the 
dealings  betn-een  himself  and  X.,  and  thus,  in  some  degree,  bearing 
upon  the  probability  of  X.  having  made  the  note.  This  seems  some- 
what beyond  the  limit  of  reasonable  inquiry,  and  it  is  submitted  that 
the  truth  or  falsity  of  M.'s  assertion  as  to  his  dealings  with  X.  was 
of  too  little  importance  to  justify  going  into  conflicting  proof  upon  it. 

6  Smith  V.  Sister  of  Good  Shepherd,  87  S.  W.  1083,  27  Ky.  Law  Rep. 
1170. 

^  Evidence  tending  to  prove  misconduct  of  a  sister  of  testator  and 


171 


§§  104-105)      OTHER   SALES   AS   PROOF   OF  VALUE. 

There  are,  however,  many  things  which  are  ''res  inter  alios 
acta"  which  are  admitted.    This  will  be  seen  in  the  illustrations 
of  the  principles  laid  down  later  in  this  chapter,     ^he^e^s 
no  general  rule  that  excludes  all  matters  of  this  sort,  and  the 
phrase  is  correctly  used  only  as  designating  a  certain  class  o 
matters,  some  of  which  are  excluded  not  because  they  are    res 
inter  aUos  acta,"  but  because  they  are  objectionable  on  some 
of  the  grounds  of  policy  which  have  been  mentioned;   as  that 
they  will  tend  to  confuse  the  issues,  or  are  of  too  slight  impor- 
tance to  justify  spending  the  time  of  the  court  with  them.    It  is 
not  sufficient,'  therefore,  to  inquire  whether  a  matter  is     res 
inter  alios  acta."    To  determine  its  admissibility,  one  must  go 
further,  and  test  it  by  the  other  principles  laid  down  m  t^iis 
chapter.    In  fact,  there  is  little  or  no  value  in  the  use  of  the 
phrase  in  this  connection,  as  it  does  not  describe  any  distmctive 
class  of  matters  which  are  inadmissible. 

RELATION  OF  OTHER  SALES  TO  PROOF  OF  VALUE. 

104.  Upon  the  questions  of  the  value  of  l^^^.^^^?^^*'^.  °*  *^ 

sale  of  other  land  at  other  places  is  xnadmissible,  as 
tending  to  eompUcate  the  issues. 

105.  In  some  jurisdictions  it  is  held  that  such  evidence  is  a^ 

missible  in  the  discretion  of  the  court  xf  it  ^^  ^^°T^ 
that  the  other  land  is  similar  in  character  to  that  the 
value  of  which  is  in  question. 

The  rule  is  not  entirely  uniform  in  regard  to  matters  of 
this  sort,  although  the  better  opinion  seems  to  be  that  such  evi- 
dence is  inadmissible.  To  submit  this  class  of  evidence  to  the 
iurv  means  to  put  the  jury  in  place  of  the  expert  on  real-estate 
value.  Ordinarily,  so  many  elements  go  to  make  up  the  idea 
of  value  that  it  is  better  to  put  the  expert  before  the  jury,  let 
him  give  his  opinion,  and  be  subjected  to  such  cross-examma- 
tion  as  may  show  to  what  weight  it  is  entitled,  rather  than  to 

of  the  undue  influence  of  such  sister  over  her  mother  is  too  remote 
and  too  likely  to  complicate  the  issues  to  be  admissible  in  evidence 
upon  the  question  of  whether  the  sister  exerted  undue  influence  oyer 
te's tator  Rapp  v.  Becker,  26  Ohio  Cir.  Ct.  R.  321.  See.  also,  Lewis  v. 
Crouch  (Tex.  Civ.  App.)  85  S.  W.  1009. 


172  MATTERS   UNIMPORTANT    OR   MISLEADING.  (Ch.  8 

complicate  matters  by  endeavoring  to  put  before  the  jury  all 
the  facts  which  will  enable  it  to  arrive,  in  the  first  instance,  at 
an  idea  of  value.  The  issue  in  the  case  being  the  value  of  a 
particular  piece  of  land,  the  evidence  should  be  confined  to  the 
condition  of  that  particular  land,  and  the  opinion  of  such  per- 
sons as  are  competent  to  judge  of  such  value.  The  sale  of  an- 
other piece  of  land  in  the  vicinity,  while  it  may  be  some  cri- 
terion of  the  value  of  the  piece  in  question,  will  also  raise  a 
distinct  issue  as  to  the  conditions  under  which  the  sale  was 
made ;  and  when  the  proof  is  sought  to  be  extended  to  a  num- 
ber of  pieces,  there  is  too  much  danger  that  the  original  issue 
will  be  lost  sight  of  in  the  testimony  as  to  the  other  pieces  of 
land.  For,  of  course,  if  one  party  be  permitted  to  show  that 
it  sold  for  a  certain  price,  the  other  must  be  permitted  to  show 
that  such  price  was  obtained  because  of  certain  special  condi- 
tions, which  may  not  exist  in  the  case  of  the  land  in  question. 
The  real  issues  in  the  action  would  thus  be  confused,  the  minds 
of  the  jury  perhaps  misled,  and  the  time  of  the  court  unduly 
consumed,  while  proof  might  be  carried  to  an  indefinite  extent 
in  following  up  the  numerous  collateral  cases.*     There  are 

8  In  re  Thompson  (1891)  127  N.  Y.  463,  28  N.  E.  389,  14  L.  R.  A, 
52.  Upon  the  assessment  of  damages  for  taking  certain  water  rights 
under  act  of  legislature,  evidence  was  offered  of  the  amount  paid  for 
other  water  rights  appurtenant  to  a  neighboring  parcel  of  land,  and 
excluded.  Parker,  J.,  says:  "Thus,  each  transaction  in  real  estate 
claimed  to  be  similarly  situated  might  present  two  side  issues,  which 
could  be  made  the  subject  of  as  vigorous  contention  as  the  main  issue ; 
and,  if  the  transactions  were  numerous,  it  might  result  in  unduly  pro- 
longing the  trial  and  unnecessarily  confusing  the  issues,  with  the  added 
disadvantage  of  rendering  preparation  for  trial  difficult."  Amoskeag 
Manuf'g  Co.  v.  Head  (1879)  59  N.  H.  332.  Under  petition  for  assess- 
ment of  damages  for  taking  flowage  rights,  evidence  was  offered  of  the 
siuns  paid  by  plaintiff  to  thirty-two  other  persons  for  flowage  rights, 
and  was  excluded.  Doe,  C.  J.,  says:  "The  evidence  of  the  sums  paid 
for  flowage  in  the  thirty-two  other  cases,  if.  as  a  matter  of  law,  it 
was  not  incompetent,  might  be  excluded  on  the  ground  that  as  a  mat- 
ter of  fact,  it  has  so  slight  or  remote  a  bearing  on  this  case  that  it 
would  be  unjust  or  unreasonable  to  prolong  and  complicate  the  trial 
by  such  an  investigation  of  those  cases  as  would  be  necessary  for 
obtaining  from  them  any  useful  information."  To  the  same  effect,  see 
Pennsylvania  S.  V.  R.  Co.  v.  Ziemer,  124  Pa.  5G0,  571,  17  Atl.  187; 
Currie  v.  Railroad  Co.,  .52  N.  J.  Law,  383,  397,  20  Atl.  56,  19  Am.  St. 
Rep.  452 ;  Spring  Valley  Waterworks  v.  Drinkhouse,  92  Cal.  528,  532, 


1 7^ 
§§  104-105)     OTHER   SALES  AS  PROOF   OF  VALUE. 

certain  cases  where  the  usefulness  of  evidence  of  this  char- 
acter may  be  conceded ;  such  cases,  for  example  as  mvolve 
the  determination  of  the  value  of  vacant  lots,  which  are  subdi- 
4ions  of  large  tracts  of  similar  lots.  Here  the  ease  with 
which  similarity  may  be  shown  would  seem  to  make  evidence 
of  other  sales  important  evidence  of  the  value  of  any  particular 

^^In^such  a  case  as  this  the  question  of  value  is  more  nearly 
akin  to  a  similar  question  in  the  case  of  personal  property 
where  similarity  between  articles  of  the  same  kind  becomes  of 
such  importance   as  to  practically  determine  the  basis  upon 
which  value  is  proved.     The  sales  of  similar  articles  estab- 

28  Pac  681.     The  Massachusetts  rule,  as  illustrated  by  Paine  v.  City 
of  Bosiou  (18G'>)  4  Allen.  IGS,  is  contra.     Upon  a  petition  for  a  DUiy 
tl  ?s4ss  clama4  for  the  taking  of  land  for  the  widening  of  a  street 
he  rS'tioneToffered.  to  show  the  value  of  the  land  taken,  evidence 
of  s^lesTseveral  lots  on  the  same  street,  one  of  which  was  withm  a 
dist^ntlof  176  feet  from  the  land  taken.     The  evi^--  .^as  ex^^^^^^ 
pri  on  the  <-round  that  the  lots  were  too  remote  fiom  the  land  taken 
b14C  C    J     savs:     "No  doubt,  it  was  the  province  of  the  judge 
foletrrmme'^hether  the  lots,  concerning  the  sale  of  whi^^ 
titJoner  offered  evidence,  were  so  similar  m  their  situation,  leiative 
noSi  Tnd  other  circumstances  bearing  on  their  value,  as  to  make 
thlTle  of  them  evidence  which  would  properly  guide  the  jury  m 
estimating  theTalue  of  the  petitioner's  land.     If,  on  a  considei-ation 
Tf  a^rthe'c'c-umstances,  he  had  rejected  evidence  conce-mg  them 
his  ruling  would  not  have  been  open  to  exception.     But  the  exclu 
si^n  of  the  Evidence  was  solely  on  the  ground  that  the  '^ts  were  at  too 
ereat  a  df^tance  from  the  land  of  the  petitioner.     To  sustain  the  xul- 
fnfit  would  be  necessaiy  for  us  to  decide  that  the  price  paid  for  a 
lot^'of  land  sitaated  on  the  same  street  with  that  which  was  the  siib- 
ect  of  controversv  could  not  be  shown,  because  it  was  one  hundml 
Tnd  slv^nS-six  feet  distant  therefrom.     Such  is  not  f^^^^^f^^^^^^' 
Sales  of  land  in  the  vicinity  were  competent,  if  the  lots  \\ere  m  an 
reinects  shnilar  to  that  owned  by  the  petitioner ;  and  evidence  con- 
Sing  such  lots  could  not  properly  be  rejected."     See.  also,  Gardner 
rSbitants  of  Brookline,  127  Mass^  3.58 ;  Town  <>f  Cherol^e^v.^i^ix 
Pitv  *i.  T   F   Town  Lot  &  Land  Co..  52  Iowa,  2(9.  3  N.  ^^.  4-,  VVasn 
b^n  V.  Raili^ad  Co.,  50  Wis.  364,  18  N.  W.  43L     ^e  M...ach^.e    s 
doctrine  prevails  in  Illinois  ^Peoria  Gaslight  &  Coke  Co.  v.  Peoua 
Terminal  Ry.  Co.,  146  111.  372.  34  N    E^5o0,  21  ^  ,1-  A-  •-.)_Io.^a 
rTown  of  Cherokee  v.  Sioux  City  &  I.  F.  Town  Lot  &  Land  Co.  5^ 
S    4  ^82    284   3  N.  W.  42),  and  in  Wisconsin  (Watson  v.  Rail- 
«-ay  Co.,  57  Wis.  332,  350,  15  N.  W.  468). 


174  MATTERS   UNIMPORTANT    OR    MISLEADING.  (Ch.  8 

lishes  market  value  in  the  case  of  personal  property,  and 
market  value  as  thus  established  becomes  the  measure  for  re- 
covery in  all  cases  where  special  circumstances  do  not  interfere 
to  make  some  special  rule  applicable.  If  the  question  be  as 
to  value  of  a  staple,  such  as  sugar,  coffee,  wheat,  or  other 
foodstuff,  or  of  some  metal,  or  of  a  security,  such  as  some  rail- 
road stock  or  bond,  it  is  the  sales  of  similar  things  which  es- 
tablish the  governing  value. 

Nor  is  there  here  any  question  of  special  proof  of  similarity, 
as  in  the  case  of  real  estate,  where  proof  of  actual  sales  is 
sought  to  be  introduced,  yet  the  inquiry  as  to  value  is  in  form 
not  an  inquiry  as  to  particular  sales,  but  as  to  market  value. 

The  question  of  a  relevancy  too  remote  to  be  useful  does, 
however,  arise  in  the  case  of  personal  property  as  in  the  case 
of  real  property.  Instead,  however,  of  relating  to  sales  of  other 
things,  it  relates  to  sales  made  at  other  times  or  other  places. 
It  is  one  of  the  requisites  of  proof  of  value  in  the  case  of 
personal  property  that  the  market  value  shall  be  shown  at 
the  time  and  the  place  in  question  with  respect  to  the  com- 
modity, the  value  of  which  is  in  issue,  and  value  of  the  same 
commodity  at  other  times  and  other  places  is  generally  ex- 
cluded as  being  within  the  principle  set  forth  in  this  chapter.® 

It  is  not  always  the  case  that  there  have  been  sales  of  a 
commodity  at  the  place  at  which  value  is  in  question,  and  in 
such  cases  value  at  other  places  becomes  of  sufficient  relevancy 
on  the  theory  that  it  is  the  best  evidence  which  can  be  produced 
to  justify  its  admission.  This  is  quite  apt  to  be  the  case  where 
an  article  is  bought  or  sold  and  delivery  is  agreed  to  be  made 
at  some  small  place,  where  there  is  no  trade  in  the  article  in 
question.  It  is  then  necessary  to  resort  to  evidence  of  market 
value  based  upon  sales  taking  place  at  some  nearby  market.^** 

9  Lundvick  v.  Insurance  Co.,  128  Iowa,  376,  104  N.  W.  420;  Texas 
&  P.  Ry.  Co.  V.  Stephens  (Tex.  Civ.  App.)  86  S.  W.  933. 

It  must  have  been  upon  an  a.ssumption  of  the  oontinunnce  of  the 
same  conditions  that  the  value  of  a  damaj^ed  automobile,  w^jnio  months 
after  the  time  at  which  the  condition  of  the  machine  was  in  question 
in  the  case,  was  allowed  to  t>e  shown  in  White  Sewing  Mach.  Co.  v. 
Beverage  Co.,  188  Mass.  407,  74  N.  E.  6rx». 

10  Kibler  V.  Caplis,  140  Mich.  28,  103  N.  W.  531,  112  Am.  St.  Rep. 
388. 


§  106)  QUESTIONS   OF   NEGLIGENCE.  175 

This  subject  of  value  illustrates  very  clearly  the  principle 
upon  which  courts  have  always  proceeded  with  reference  to 
proof,  and  shows  the  influence  which  practical  conditions  has 
exerted  in  moulding  rules  respecting  the  admission  of  evidence. 
Where  there  is  an  abundance  of  available  evidence  of  a  more 
convincing  nature,  evidence,  though  logically  relevant,  less 
convincing  in  character,  will  not  be  received,  because  there  is 
no  practical  reason  why  it  should  be.  When,  however,  the 
less  conclusive  evidence  is  the  only  evidence  which  can  be  had, 
then  the  court  will  always  receive  it,  as  bringing  some  light  to 
the  issue  and  as  helpful  in  some  degree.^^ 


COLLATERAL  ACTS  INADMISSIBLE  UPON   QUESTION  OF 

NEGLIGENCE. 

106.  Upon  the  question  of  negligent  conduct  in  the  manage- 
ment of  a  business,  evidence  as  to  tlie  manner  in  wliich 
similar  business  is  carried  on  by  others  is  not  admis- 
sible as  a  standai'd  of  comparison. 

The  question  of  negligence  is  one  which  in  each  case  must 
be  determined  by  reference  to  the  particular  facts  and  circum- 
stances of  such  case.  X.  conducts  his  business  in  a  certain 
manner,  and  an  injury  results  to  A.  The  fact  that  Y.  conducts 
his  business  in  a  different  manner,  and  no  injury  results,  is 
not  evidence  that  X.'s  conduct  was  negligent.  One  person  or 
a  dozen  persons  cannot,  by  conducting  their  business  in  a  par- 
ticular manner,  make  that  manner  the  standard  of  safety.  Evi- 
dence of  this  sort  is  therefore  inadmissible  except  in  certain 
cases  and  for  certain  collateral  purposes,  referred  to  in  the 
following  sections.  With  the  natural  tendency  to  judge  the 
conduct  of  one  person  by  reference  to  conduct  on  the  part  of 

11  As  an  instance  of  the  principle  cited  in  the  text  the  following 
case  is  an  interesting  one:  The  question  was  as  to  the  value  of 
certain  corporate  stock,  and,  there  heing  no  market  value  and  no 
sales,  the  court  permitted  an  inquiry  into  the  nature  and  amount  of 
the  business  done  by  the  corporation,  the  amount  of  dividends  paid, 
and  other  facts  relating  to  the  financial  condition  of  the  corporation, 
all  of  which  would  have  been  excluded  in  the  case  of  a  stock  active- 
ly dealt  in.     Butler  v.  Wright,  103  App.  Div.  4G3,  93  N.  Y.  Supp.  113. 


176  MATTERS   UNIMPORTANT    OR   MISLEADING.  (Ch.  8 

another  which  is  approved  by  the  mind,  such  evidence  would 
be  extremely  misleading,  and  productive  of  grave  injustice,  if 
admitted  generally  and  for  the  purpose  of  supplying  to  the 
jury  a  ready-made  standard,  in  place  of  the  standard  which  in 
each  case  the  jury  should  set  up  for  itself  from  all  the  evidence 
submitted. ^^ 

12  In  Maynard  v.  Buck  (1868)  100  Mass.  40,  A.  sued  X.  for  the  value 
of  a  pair  of  steers  lost  through  X.'s  negligence.  Testimony  as  to  what 
was  the  usual  practice  of  persons  in  similar  business  (that  of  drover) 
was  admitted,  and  X.  requested  the  court  to  charge  that  "if  he  did  do 
the  things  that  drovers  of  common  prudence,  engaged  in  the  same 
business,  ordinarily  do,  he  was  not  guilty  of  such  negligence  as  will 
make  him  liable  in  the  action."  This  was  refused.  Wells,  J.  (page 
47),  says  in  reference  to  this :  "But  this  is  not  the  legitimate  appli- 
cation of  evidence  admitted  to  show  the  usual  i^ractice  in  similar 
cases.  *  *  *  That  which  is  admissible  in  evidence  is,  not  the  par- 
ticular?, but  what  the  witnesses  state,  from  their  knowledge  of  those 
particulars,  to  be  usual,  or  the  course  ordinarily  pursued.  The  char- 
acter for  prudence  of  those  whose  conduct  or  acts  go  to  make  up  this 
usual  practice  is  not  required  to  be  shown.  It  forms  no  part  of  the 
inquiry.  The  effect  and  purpose  of  the  evidence  is  to  aid  the  jury 
in  forming  their  judgment  of  what  the  party  was  bound  to  do,  or  was 
justified  in  doing,  under  all  the  circumstances  of  the  case.  What  had 
been  done  by  others  previously,  however  uniform  in  mode  it  may  be 
shown  to  have  been,  does  not  make  a  rule  of  conduct  by  which  the 
jury  are  to  be  limited  and  governed.  It  is  not  to  control  the  judg- 
ment of  the  jury,  if  they  see  that,  in  the  case  under  consideration,  it 
is  not  such  conduct  as  a  prudent  man  would  adopt  in  his  own  affairs, 
or  not  such  as  a  due  regard  for  the  obligations  of  those  em- 
ployed in  the  affairs  of  others  would  require  them  to  adopt.  It  is 
evidence  of  what  is  proper  and  reasonable  to  be  done,  from  which, 
together  with  all  the  other  facts  and  circumstances  of  the  case,  the 
jury  are  to  determine  whether  the  conduct  in  question  in  the  case 
before  them  was  proper  and  justifiable."  In  Wabash  Ry.  Co.  v.  Mc- 
Daniels,  107  U.  S.  454,  2  Sup.  Ct.  932,  27  L.  Ed.  G05,  commenting  on 
the  claim  that  what  is  ordinary  care,  as  required  on  the  part  of  a 
railroad  company,  is  what  it  is  customary  for  railroads  to  observe. 
Mr.  .Justice  Harlan  says  (pages  460,  461,  107  U.  S.,  and  page  937,  2 
Sup.  Ct.  [27  L.  Ed.  60.5]) :  "Ordinary  care,  then. — and  the  jury  were, 
in  effect,  so  informed, — implies  the  exercise  of  reasonable  diligence; 
and  reasonable  diligence  implies,  as  between  the  employer  and  em- 
ploye, such  watchfulness,  caution,  and  foresight  as,  under  all  the 
circumstances  of  the  particular  service,  a  corporation  controlled  by 
careful,  prudent  officers  ought  to  exercise.  These  observations  meet, 
in  part,  the  suggestion  made  by  counsel  that  ordinary  care  in  the  em- 
ployment and  retention  of  railroad  employes  means  only  that  degree 


107)  QUESTIONS  OF   NEGLIGENCE.  177 


SAME— WHEX  ADMISSIBLE. 

107.  Sucli  evidence  may,  however,  be  admissible  to  enligbten 
the  jury  as  to  the  nature  of  the  business,  risks  involv- 
ed, and  ordinary  known  methods  of  meeting  them,  in 
order  that  it  may  intelligently  judge  as  to  the  acts 
charged  to  be  negligent. 

There  are  certain  lines  of  business  with  which  the  ordinary 
person  is  not  familiar ;  lines  where  many  men  are  employed 
in  many  different  departments,  and  where  extensive  and  varied 
interests  are  involved  ;  where  methods  have  by  long  experience 
been  systematized,  and  only  those  accomplishing  best  results 
retained  and  established.  Such  lines  of  business  are  those 
usually  carried  on  by  semipublic  corporations, — railroads,  tele- 
graphs, large  manufacturing  and  mining  companies.  Where 
a  question  arises  as  to  negligence  on  the  part  of  such  a  defend- 
ant, the  personal  element  is  usually  lacking,  and  the  matter 
is  reduced  to  a  question  of  whether  some  method  adopted  is 
the  most  approved  method  of  handling  the  particular  branch 
of  the  business  in  which  the  injury  has  been  occasioned.     Here 

of  diligence  which  is  customaiy,  or  is  sanctioned  by  the  general  prac- 
tice and  usage  which  obtains,  among  those  intrusted  with  the  manage- 
ment and  control  of  railroad  property  and  railroad  employes.  To  this 
view  we  cannot  give  our  assent.  If  the  general  practice  of  such  cor- 
porations in  the  appointment  of  servants  is  evidence  which  a  juiy 
may  consider  in  determining  whether,  in  the  particular  case,  the 
requisite  degree  of  care  was  observed,  such  practice  cannot  be  taken 
as  conclusive  upon  the  inquiry  as  to  the  care  which  ought  to  have 
been  exercised."  The  question  of  the  admissibility  of  this  class  of 
evidence  did  not  arise  in  this  case,  but  in  Grand  Trunk  R.  Co.  v. 
Richardson,  91  U.  S.  454,  23  L.  Ed.  356.  evidence  was  offered  by  the 
defendant  to  show  that  the  usual  practice  of  railroad  companies  was 
not  to  employ  watchmen  for  bridges  like  the  one  the  burning  of 
which  caused  the  destruction  of  the  plaintiff's  buildings.  Mr.  Justice 
Sti-ong  says  (page  469  of  91  U.  S.  [23  L.  Ed.  3-56]) :  "It  is  impossible 
for  us  to  see  any  reason  why  such  evidence  should  have  been  admit- 
ted. The  issue  to  be  determined  was  whether  the  defendant  had  been 
guilty  of  negligence;  that  is,  whether  it  had  failed  to  exercise  that 
caution  and  diligence  which  the  circumstances  demanded,  and  which 
prudent  men  ordinarily  exercise.  Hence  the  standard  by  which  its 
conduct  was  to  be  measured  was  not  the  conduct  of  other  railroad 
companies  in  the  vicinity ;  certainly,  not  their  usual  conduct." 

m'kelv.ev.(2d  ED.)— 12 


178  MATTERS   UNIMPORTANT    OR   MISLEADING.  (Ch.  8 

we  find  a  case  where  the  jury,  unfamiliar  with  ordinary  and 
practical  methods  of  carrying  on  such  business,  will  be  all  at 
sea  as  to  the  matter  unless  some  information  be  given  them. 
In  such  cases  there  seems  to  be  a  real  use  for  evidence  of  what 
methods  are  adopted  by  other  concerns,  not  to  stamp  the  de- 
fendant's method  as  a  negligent  one,  but  to  enable  the  jury  to 
intelligently  determine  whether  it  was  or  was  not.^* 


SUBSEQUENT  ACTS  OF  PRECAUTION. 

108.  Precautions  taken  by  persons,  charged  uritli  a  responsi- 
bility for  injuries,  after  the  occurring  of  sncb  injuries 
are  not  admissible  to  shoiv  previous  negligence. 

This  is  law  both  in  this  country  and  in  England.  A  person 
charged  with  negligence,  by  reason  of  which  an  injury  has  re- 
sulted, may  take  action  looking  towards  the  remedying  of  the 
defect  which  has  caused  the  injury.  This  may  or  may  not 
indicate  a  consciousness  on  his  part  that  the  defect  existed  and 
could  have  been  remedied  before.  If  introduced  as  evidence, 
however,  it  is  almost  certain  that  the  jury  would  look  at  it  as 
an  admission  of  responsibility.  At  least  there  is  great  risk  of 
its  misleading  them  by  withdrawing  their  minds  from  the  real 
issue,  which  is  whether  the  person  charged  with  negligence 
exercised  reasonable  care  before  and  at  the  time  the  injury 

isMaynard  v.  Buck,  supra;  Lane  v.  Railroad  Co.,  112  Mass.  455, 
463 ;  Berg  v.  Leather  Ck).,  125  Wis.  262,  104  N.  W.  60.  The  case  of 
Cass  V.  Railroad  Co.  (1867)  14  Allen  (Mass.)  448,  in  which  A.  sued 
X.,  as  a  warehouseman,  for  failure  to  deliver  a  tub  of  sugar,  and  it 
was  held  competent  for  X.  to  prove  that  he  exercised  the  same  care  as 
by  others  in  the  same  business,  and  the  sugar  was  stolen,  goes  a  little 
too  far  in  the  language  of  its  decision,  though  it  is  probable  that  the 
court  did  not  consider  the  evidence  as  establishing  any  standard,  nor 
admit  it  for  that  purpose.  Colt,  J.,  says  (page  449):  "If  the  defend- 
ants exercised  due  and  ordinary  care  in  the  custody  of  the  property, 
they  cannot  be  charged  for  its  loss.  What  constituted  such  care  was 
a  question  of  fact,  to  be  judged  of  with  reference  to  all  the  circum- 
stances, and  especially  with  reference  to  the  degree  of  care  which 
other  persons  engaged  In  similar  business  in  the  vicinity  were  in  the 
habit  of  bestowing  on  property  similarly  situated."  See,  also,  Boyce 
V.  Lumber  Co.,  119  Wis.  642,  97  N.  W.  563. 


§  109)  OTHER  ACTS   OF   DEFENDANT.  1'^^ 

occurred.  Reasonable  care  before  the  accident  may  be  one 
thing,  and  reasonable  care  after  the  accident,  with  the  increased 
knowledge  of  danger  which  the  happening  of  the  accident  has 
brought,  may  be  quite  another.^* 


OTHER  ACTS  OF  DEFENDANT. 

109.  The  effect  of  acts  of  similar  character  to  the  one  from 
which  the  injury  is  claimed  to  have  resulted,  perform- 
ed by  the  defendant  in  respect  to  other  persons,  cannot 
be  shown  upon  the  question  of  negligence. 

14  Columbia  &  P.  S.  R.  Co.  v.  Hawthorne,  144  U.  S.  202,  12  Sup.  Ct. 
591,  36  L.  Ed.  405.    A.  v.  X.  for  damages  for  injuries  caused  by  X.'s 
negligence  in  providing  an  unsafe  machine.     A.  offers  to  prove  that, 
shortly  after  the  accident,  X.  altered  and  repaired  the  machine.    Is 
it  admissible?     Justice  Gray  says:     "But  it  is  now  settled,  upon 
much  consideration,  by  the  decisions  of  the  highest  courts  of  most 
of  the  states  in  which  the  question  has  arisen,  that  the  evidence  is  in- 
competent, because  the  taking  of  such  precautions  against  the  future 
is  not  to  be  construed  as  an  admission  of  responsibility  for  the  past, 
has  no  legitimate  tendency  to  prove  that  the  defendant  has  been  neg- 
ligent before  the  accident  happened,  and  is  calculated  to  distract  the 
minds  of  the  jury  from  the  real  issue,  and  to  create  a  prejudice 
against  the  defendant."     In  the  case  of  Hart  v.  Railway  Co.,  21  Law 
T.  (N.  S.)  261,  263,  Baron  Bramwell  said:     "People  do  not  furnish 
evidence  against  themselves  simply  by  adopting  a  new  plan  in  order 
to  prevent  the  recurrence  of  an  accident.     I  think  that  a  proposition 
to  the  contrary  would  be  barbarous.     It  would  be,  as  I  have  often 
had  occasion  to  tell  juries,  to  hold  that,  because  the  world  gets  wiser 
as  it  gets  older,  therefore  it  was  foolish  before."     See,  to  the  same 
effect,  Shinners  v.  Proprietors  of  Locks  &  Canals,  154  Mass.  168,  28 
N.  E.  10,  12  L.  R.  A.  554,  26  Am.  St.  Rep.  226 ;  Getty  v.  Town  of  Ham- 
lin, 127  N.  Y.  636,  27  N.  E.  399 ;  Nalley  v.  Carpet  Co.,  51  Conn.  524, 
50  Am.  Rep.  47 ;  Board  of  Com'rs  of  Wabash  Co.  v.  Pearson,  129  Ind. 
456,  28  N.  E.  1120;    Hodges  v.  Percival,  132  111.  53,  23  N.  E.  423; 
Lombar  v.  Village  of  East  Tawas,  86  Mich.  14,  48  N.  W.  947 ;  Ely  v. 
Railway  Co.,  77  Mo.  34 ;  Kuhns  v.  Railway  Co.,  76  Iowa,  67,  40  N.  W. 
92 ;  Day  v.  Lumber  Co.,  54  Minn.  522,  528,  56  N.  W.  243,  23  L.  R.  A. 
513 ;   Missouri  Pac.  Ry.  Co.  v.  Hennessey,  75  Tex.  155,  12  S.  W.  608. 
Such  evidence  is  equally  inadmissible  whether  brought  out  by  direct 
or  cross  examination.     Jennings  v.  Town  of  Albion,  90  Wis.  22,  62  N. 
W.  926.     The  rule  in  Pennsylvania  is  contra  to  the  doctrine  followed 
by  the  eases  cited  above.     Lederman  v.  Railroad  Co.,  165  Pa.  118,  30 
Atl.  725,  44  Am.  St.  Rep.  644,  cases  cited  page  125,  165  Pa.,  and  page 
726,  30  Atl.  (44  Am.  St.  Rep.  644).     And  in  Kansas  it  is  held  that  evi- 


180  MATTERS    UNIMPORTANT    OR    MISLEADING.  (Ch.  8 

Acts  of  this  sort  are  "res  inter  alios  acta,"  or  things  done  in 
reference  to  others,  and  are  held  to  have  no  bearing  upon  the 
things  charged  as  done  by  the  defendant  in  respect  to  the  plain- 
tiff. For  example,  the  fact  that  the  defendant  has  delivered 
goods  of  certain  quality  to  X.  does  not  show  that  similar  goods 
delivered  to  the  plaintiff  were  of  the  same  quality.  So,  also, 
the  fact  that  the  defendant  has  been  negligent,  with  a  similar 
resulting  injury,  in  respect  to  others  in  the  same  way  in  which 
it  is  charged  he  has  been  negligent  in  respect  to  the  plaintiff, 
is  not  admissible.^  ^  This  class  of  evidence  might  in  certain 
cases  lead  to  some  slight  inference  as  to  the  main  fact  in  issue, 
but  it  would  involve  such  a  multiplicity  of  collateral  issues 
that  it  would  tend  to  confuse  the  minds  of  the  jury,  and  ob- 
scure the  real  question  before  them.^* 

dence  of  subsequent  repairs  is  admissible  to  show  previous  defective 
condition,  but  not  to  show  knowledge  of  such  condition  on  the  part 
of  the  defendant.  Barter  v.  Railroad  Ck).,  55  Kan.  250,  257,  38  Pac. 
778. 

1 5  Holcombe  v.  Hewson  (1810)  2  Camp.  391,  was  as  follows :  A.  v. 
X.  on  an  agreement  by  which  X.  was  to  talce  the  beer  which  he  sold 
from  A.,  or  else  pay  a  large  rent  for  the  house  he  occupied,  of  which 
A.  was  the  owner.  X.  claimed  the  beer  was  of  poor  quality.  A 
offered  to  show  by  other  customers  of  his  that  the  beer  supplied  to 
them  at  the  time  that  X.  was  buying  of  another  brewer,  and  refused 
to  take  A.'s  beer,  was  of  excellent  quality.  Lord  Ellenborough  says : 
"This  is  res  inter  alios  acta.  We  camiot  here  inquire  into  the  quality 
of  different  beer  furnished  to  different  persons.  The  plaintiff  might 
deal  well  with  one,  and  not  with  the  others."  In  Emerson  v.  Light 
Ck).  (1862)  3  Allen  (Mass.)  410,  the  action  was  by  A.  v.  X.  for  injury 
to  A.'s  health  from  gas  escaping  from  X.'s  pipes.  It  was  proved  that 
gas  escaped  from  X.'s  pipes,  and  passed  under  the  frozen  earth, 
through  sewers,  into  A.'s  cellar  and  house.  A.  offers  to  show  that 
a  large  number  of  houses  in  the  neighborhood,  the  drains  of  which 
were  connected  with  the  same  sewers  as  A.'s  house,  were  filled  with 
gas,  and  that,  wherever  the  gas  entered,  sickness  followed.  Merrick, 
J.,  says  (page  417):  "If  such  evidence  was  admissible,  the  issues  in 
a  single  cause  might  be  indefinitely  multiplied ;  and  this  would  tend 
only  to  confusion  and  to  mislead  the  jury."  To  the  same  effect  is 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Rowland,  82  Tex.  166,  18  S.  W.  9G. 

16  In  an  action  for  damages  against  a  railroad  company  for  re- 
fusing to  deliver  a  car  loaded  with  cotton  seed  on  a  side  track  at 
plaintiff's  warehouse,  evidence  cannot  be  given  of  a  refusal  of  the 
same  character  at  other  times  before  and  after  the  instance  alleged. 
Central  R.  of  Georgia  v.  Brokerage  Co.,  122  Ga.  646,  50  S.  E.  473,  69 


}§  110    111)       DANGEROUS  OBSTRUCTION  OR  EXCAVATION.       181 


EFFECT    OF    SAME    ACT    ON    OTHER    PERSONS. 

110.    Tlie  effect,  however,  of  tlie  particular  act  charged  as  neg- 
ligent  npon  others  at  the  same  time  may  be  admissible. 

Where  the  negHgent  act  has  resulted  in  similar  injury  to  a 
number  of  persons,  their  evidence  of  this  fact  may  serve  to 
show  that  the  injury  in  question  resulted  from  such  act,  and 
not  from  some  other  cause. ^'  If  a  number  of  persons  simi- 
larly situated  are  all  made  sick  by  the  same  act  of  negligence 
for  which  plaintiff  seeks  damages,  and  defendant  denies  that 
the  plaintiff's  sickness  was  caused  by  his  act,  the  apparent  ef- 
fect on  the  other  persons  is  a  strong  piece  of  circumstantial 
evidence  to  support  plaintiff's  claim.  In  such  a  case  it  seems 
proper  to  admit  the  evidence,  though  it  must  necessarily  be 
limited  to  the  bare  facts,  and  not  be  allowed  to  degenerate  into 
a  minute  collateral  inquiry  as  to  the  circumstances  of  each 
case  of  sickness.  This  is  one  of  those  cases  where  the  discre- 
tion of  the  court  must  control  the  inquiry  as  fairness  and  the 
particular  circumstances  of  the  case  may  seem  to  demand. 


PROOF   AS    TO   DANGEROUS    CHARACTER    OF   OBSTRUC- 
TION OR  EXCAVATION. 

111.  Upon  the  qnestion  of  the  dangerous  character  of  an  ob- 
struction or  excavation  it  has  been  generally  held  that 
its  effect  at  other  times  may  be  sho\vn. 

A  distinction  has  been  made  between  cases  of  this  sort  and 
cases  where  the  question  is  as  to  the  conduct  of  a  person;  it 
being  held  that,  in  showing  a  dangerous  quality  of  a  thing, 
testimony  as  to  its  effect  at  other  times  may  be  given.     Thus, 

L.  R,  A.  119.  So,  in  an  action  against  a  bank  for  refusal  to  pay  a 
checlv,  evidence  of  other  instances  of  dishonor  of  plaintiff's  checks  is 
inadmissible.  Some  interesting  observations  upon  this  class  of  evi- 
dence will  be  found  in  17  Harvard  Law  Rev.  349. 

17  In  Hunt  V.  Light  Co.  (1864)  8  Allen  (Mass.)  169,  85  Am.  Dec.  697, 
It  was  held  that  evidence  that  other  persons  in  the  same  house  were  in 
good  health  before  the  escape  of  the  gas.  and  became  sick  immediate- 
ly thereafter,  was  admissible,  but  that  the  particulars  of  each  case 
would  not  be  inquired  into. 


L82  MATTERS    UNIMPORTANT    OR    MISLEADING.         (Oh.  8 

in  a  case  where  an  action  was  brought  for  damages  for  injury 
occasioned  by  a  pile  of  lumber  in  the  highway,  which  frighten- 
ed plaintiff's  horse,  testimony  that  the  same  pile  of  lumber  had 
frightened  other  horses  was  held  competent,  as  showing  the 
terrifying  quality  of  the  obstruction.^'  This,  however,  is  not 
the  universal  rule.^"     The  whole  question  is  one  which  must 

18  In  Darling  v.  Westmoreland  (1872)  52  N.  H.  401,  13  Am.  Rep.  55, 
the  action  was  by  A.  v.  X.  for  damages  for  an  injury  occasioned  by  de- 
fects in  the  highway,  consisting  of  a  pile  of  lumber  likely  to  frighten 
horses,  and  an  insufficient  railing  of  a  bridge.     A.  offered  to  show  that 
P.'s  horse,  in  being  driven  past  the  lumber,  took  fright  thereat.    The 
evidence  was  held  admissible.     Doe,  J.,  says :     "The  terrifying  quality 
of  the  pile  being  in  question,  the  terror  of  Fletcher's  horse  is  no  more 
collateral  than  the  terror  of  Darling's.     Should  they  both  be  excluded 
from  the  consideration  of  that  question?    And  sliould  the  evidence 
that  the  plaintiff's  horse  was  vicious  and  unsafe  on  other  occasions 
also  have  been  excluded?"     In  District  of  Colximbia  v.  Arms  (1883) 
107  U.  S.  519,  2  Sup.  Ct.  840,  27  L.  Ed.  618,  the  action  was  by  A.  v. 
X.  for  damages  for  personal  injury  caused  by  a  defective  sidewalk. 
Is  evidence  of  a  policeman  that  he  had  seen  as  many  as  five  persona 
fall  at  the  same  place  competent?     Justice  Field  says :     "The  fre- 
quency of  accidents  at  a  particular  place  would  seem  to  be  good  evi- 
dence of  its  dangerous  character ;  at  least,  it  is  some  evidence  to  that 
effect.     Persons  are  not  wont  to  seek  such  places,  and  do  not  willing- 
ly fall  into  them.     Here  the  character  of  the  place  was  one  of  the 
subjects  of  inquiry  to  which  attention  was  called  by  the  nature  of  the 
actions  and  pleadings,  and  the  defendant  should  have  been  prepared 
to  show  its  real  character,  in  the  face  of  any  proof  bearing  on  that 
subject."     In  an  action  against  the  city  of  Chicago  to  recover  damages 
resulting  from  the  death  of  a  person  who,  in  the  night,  stepped  off  an. 
approach  to  a  bridge  while  it  was  swinging  around  to  enable  a  vessel 
to  pass,  and  was  drowned, — it  being  alleged  that  the  accident  happen- 
ed by  reason  of  the  neglect  of  the  city  to  supply  suflielent  lights  to  en- 
able persons  to  avoid  such  dangers, — the  supreme  court  of  Illinois  held, 
that  it  was  competent  for  the  plaintiff  to  prove  that  another  person 
had,  under  the  same  circumstances,  met  with  a  similar  accident.    City 
of  Chicago  v.  Powers,  42  111.  169,  89  Am.  Dec.  418.    To  the  objection 
that  the  evidence  was  inadmissible,  the  court  said:    "The  action  waa 
based  upon  the  negligence  of  the  city  in  failing  to  keep  the  bridge 
properly  lighted.     If  another  person  had  met  with  a  similar  fate  at 
the  same  place,  and  from  a  like  cause,  it  would  tend  to  show  a  knowl- 
edge on   the   part   of  the  city   that   there  was   inattention   on   the 
part  of  their  agents  having  charge  of  the  bridge,  and  that  they  had 
failed  to  provide  proper  means  for  the  protection  of  persons  crossing 
on  the  bridge." 

i»  In  Temperance  Hall  Ass'n  r.  Giles,  33  N.  J.  Law,  260,  the  facta 


§  112)      AS  TO   DEFECTIVE   MACHINERY   OR   APPLIANCE.         183 

rest  in  the  sound  discretion  of  the  court.  There  is  a  danger 
in  admitting  the  evidence,  in  that  it  opens  the  door  to  such  a 
wide  field  of  collateral  inquiry;  a  field  of  inquiry,  too,  from 
which  it  would  be  unjust  to  exclude  the  party  against  whom 
the  evidence  operates.  If,  for  example,  in  the  case  of  the 
pile  of  lumber  referred  to  above,  the  plaintiff  is  allowed  to  show 
that  it  frightened  another  horse,  defendant  should  be  allowed 
to  meet  this  by  showing  that  such  other  horse  was  by  nature 
a  vicious  horse,  which  was  in  the  habit  of  becoming  frightened 
without  cause.  It  is  believed  that  less  injustice  would  result 
from  the  entire  exclusion  of  this  class  of  evidence  than  from 
the  limitation  of  the  collateral  inquiry  after  the  door  is  once 
opened  to  it. 


AS    TO    DEFECTIVE    MACHINERY    OR    APPLIANCE. 

112.  If  tlie  question  be  as  to  tte  character  of  appliances  used 
by  tbe  defendant,  the  effects  of  such  appliances  at 
other  times  may  become  admissible,  as  showing  what 
their  character  is. 

The  principle  above  stated  finds  its  most  frequent  application 
in  the  cases  relating  to  the  setting  of  fires  by  locomotives, 
though  it  is  not  confined  to  them.'*'     It  is  now  very  generally 

brought  up  the  question  of  the  dangerous  character  of  an  area,  and 
the  court  refused  to  admit  evidence  that  other  persons  had  passed  the 
area  without  injury,  for  the  purpose  of  showing  its  character  was  not 
dangerous.  Depue,  J.,  says  (page  2G4) :  "It  would  not  be  competent 
for  the  party  suing  to  prove,  as  tending  to  show  that  it  was  a  nui- 
sance, that  at  other  times  other  persons  fell  into  the  excavation. 
Ctollins  V.  Inhabitants  of  Dorchester,  6  Gush.  (Mass.)  396;  Hubbard 
V.  Railroad  Co.,  39  Me.  506.  Nor  is  it  competent  for  the  defendant  to 
introduce  evidence  that  other  persons,  at  other  times,  when  the  area 
was  in  the  same  condition,  passed  the  place  complained  of  without 
receiving  any  injury.  Aldrich  v.  Inhabitants  of  Pelham,  1  Gray 
(Mass.)  510;  Kidder  v.  Inhabitants  of  Dunstable,  11  Gray  (Mass.)  342. 
The  reason  for  excluding  all  evidence  of  this  character  is  that  it 
would  lead  to  the  trial  of  a  multitude  of  distinct  issues,  involving  a 
profitless  waste  of  the  time  of  the  court,  and  tending  to  distract  the 
attention  of  the  jury  from  the  real  point  in  issue,  without  possessing 
the  slightest  force  as  proof  of  the  matters  of  fact  involved." 

ao  In  Findlay  Brewing  Co.  r.  Bauer,  50  Ohio  St.  560,  35  N.  E.  55, 


1S4  MATTERS    UNIMPORTANT    OR    MISLEADING.  (Cll.  8 

held  that,  for  the  purpose  of  showing  the  character  of  the  en- 
gines used  by  the  defendant,  and  thus  as  indirectly  bearing 
upon  the  question  of  its  negligence,  in  connection  with  testi- 
mony showing  what  are  safe  and  proper  engines,  evidence  of 
the  manner  in  which  the  engines  worked  at  other  times  is  ad- 
missible.^^ There  are  several  distinctions  which  should  be 
noted  in  this  class  of  cases.  There  are  always  two  facts  to  be 
proved, — the  setting  of  the  fire,  and  the  negligence.  It  is 
the  better  opinion  that  evidence  of  this  character  is  admissible 
upon  both  questions.^^    There  are  cases,  however,  which  have 

evidence  of  his  kind  was  held  competent  to  show  the  dangerous  char- 
acter of  a  lift  used  to  elevate  barrels. 

21  Thomp.  Neg.  p.  159;  1  Greenl.  Ev.  p.  446;  Grand  Trunk  R.  Co.  v. 
Richardson,  91  U.  S.  454,  470,  471,  23  D.  Ed.  356 ;  Field  v.  Railroad, 
32  N.  Y.  339 ;  Haseltine  v.  Railroad,  64  N.  H.  545,  15  Atl.  143 ;  Cleave- 
land  V.  Railway  Co.,  42  Vt.  449,  457 ;  Henderson  v.  Railroad  Co.,  144 
Pa.  461,  481,  22  Atl.  851,  16  L.  R.  A.  299,  27  Am.  St.  Rep.  652 ;  Green 
Ridge  R.  Co.  v.  Brinkman,  64  Md.  52,  60,  20  Atl.  1024,  54  Am.  Rep. 
755 ;  Longabaugh  v.  Railroad  Co.,  9  Nev.  271 ;  Diamond  v.  Railroad 
Co.,  6  Mont.  580,  586,  13  Pac.  367.  Where  the  evidence  is  as  to  the 
manner  in  which  the  engine  worked  after  the  fire,  to  render  it  ad- 
missible it  must  appear  that  the  engine  was  in  the  same  condition  as 
at  the  time  of  the  fire.  Collins  v.  Railroad  Co.,  109  N.  Y.  243,  250,  16 
N.  E.  50. 

22  Sheldon  v.  Railroad  Co.  (1856)  14  N.  Y.  218,  67  Am.  Dec.  15.5,  A.  v. 
X.  for  the  negligent  burning  of  buildings  by  sparks  from  a  locomotive 
engine  run  by  X.  but  not  identified.  A.  offers  to  show  that  shortly 
before  the  fire  a  witness  had  seen  sparks  and  fire  thrown  from  the 
engines  used  by  X.  on  its  road,  and,  after  passage  of  an  engine,  had 
picked  up  lighted  coals  over  two  inches  in  length.  In  respect  to  the 
competency  of  this  evidence  the  court  says:  "It  is  competent  prima 
facie  evidence  for  a  person  seeking  to  establish  the  responsibility  of 
the  company  for  a  burning  upon  the  fr^ck  6f  the  road,  after  refuting 
every  other  probable  cause  of  the  fire,  to  show  that  about  the  time 
when  it  happened  the  trains  which  the  company  was  running  past 
^e  .location  of  the  fire  were  so  managed,  in  respect  to  the  furnaces, 
as.tv  be  likely  to  set  on  fire  objects  not  more  remote  than  the  prop- 
ej'jty,  burned.  The  effect  of  the  evidence  would  only  be  to  shift  the 
oaps  probandi  upon  the  company,  and  that,  under  the  circumstances 
of  this  case,  seems  to  me  to  be  unavoidable.  For  instance,  if  it  were 
nroyed  to  be  universally  true  that  the  engines  on  the  defendant's  road 
scattered  fire,  upon  both  sides,  so  as  to  endanger  property  as  near  the 
tc^ack.as  this  building  was.  and  it  was  established,  as  was  done  in  this 
case,  that  the  property  claimed  to  have  been  set  on  fire  by  the  neff- 
ligience  of  the  defendants  was  actually  burned,  without  any  known 


§  112)      AS   TO    DEFECTIVE    MACHINERY    OR   APPLIANCE.         1S5 

proceeded  upon  the  theory  that  the  evidence  was  admissible  as 
showing  the  possibiHty  that  the  defendant's  engines  could  have 
set  the  fire,  but  not  admissible  for  the  purpose  of  showing  de- 
fendant's negligence. 2^     There  is  another  distinction  also  to 
be  made  between  cases  where  a  particular  engine  is  identified 
and  charged  with  setting  the  fire  and  cases  where  the  fire  is 
charged  generally  against  the  defendant,  but  the  particular  en- 
gine is  unknown.    In  the  latter  case,  evidence  as  to  the  man- 
ner in  which  any  engine  of  the  company  operated  is  admissi- 
ble;  while  in  the  former  case  some  authorities  hold  that,  the 
charge  of  negligence  being  confined  to  a  single  engine,  the 
evidence  must  be  confined  to  that  particular  engine.^*    It  would 
seem,  however,  that  in  either  case  the  evidence  ought  to  be 
admitted  on  the  question  of  the  possibility  of  communication 
of  fire ;  and  if  there  is  any  merit  in  the  doctrine  frequently  laid 
down  that  in  the  operation  of  a  railroad  a  unity  of  management 
and  similarity  in  construction  of  the  appliances  used  is  to  be 
presupposed,  the  evidence  would  seem  admissible  also  upon  the 
point  of  negligence.-^ 

cause  or  circumstance  of  suspicion  besides  the  engines,  it  would  clear- 
ly be  incumbent  on  tbe  defendants  to  show  that  they  were  not  the 
cause."  To  the  same  effect  are  Grand  Trunk  R.  Co.  v.  Richardson, 
91  U.  S.  4.54,  23  L.  Ed.  356;  Northern  Pac.  R.  Co.  v.  Lewis,  7  U.  S. 
App.  254,  2  C.  C.  A.  446,  and  51  Fed.  658;  Green  Ridge  R.  Co.  v. 
Brinkman,  64  Md.  52,  20  Atl.  1024.  54  Am.  Rep.  755 ;  Jacksonville,  T. 
&  K.  W.  Ry.  Co.  V.  Peninsular  Laud,  Transp.  &  Manuf'g  Co.,  27  Fla. 
1,  75,  et  seq..  9  South.  661,  17  L.  R.  A.  33,  65,  and  all  the  cases  cited 
under  preceding  note. 

23  In  Smith  v.  Railroad  Co.,  10  R.  I.  22,  it  was  held  that  evidence 
of  previous  fires  having  been  set  by  defendant's  engine  was  admis- 
sible on  both  questions,  but  that  evidence  of  subsequent  fires  was  only 
admissible  on  the  question  of  the  possibility  of  communicating  fire. 
That  evidence  of  the  condition  of  an  engine,  and  the  emission  of 
sparks  on  prior  occasions,  is  admissible  only  for  the  purpose  of  show- 
ing the  possibility  of  the  communication  of  fire,  is  held  in  Edwards 
V.  Navigation  Co..  39  Q.  B.  U.  C.  p.  264. 

24  Patton  V.  Railway  Co.,  87  Mo-  117,  123,  56  Am.  Rep.  446.^ 

2  5  In  Grand  Trunk  R.  Co.  v.  Richardson  (187.5)  91  U.  S.  454.  23  L. 
Ed.  356,  A.  sued  X.  for  destruction  of  A.'s  sawmill  by  fire  alleged  to 
have  been  communicated  by  X.'s  engine.  The  evidence  showed  that 
the  fire  was  caused  by  one  of  two  engines.  Is  testimony  that  engines 
of  X..  at  various  times  during  same  season  before  fire  occurred,  scat- 
tered fire  along  where  plaintiffs  mill  was,  without  showing  that  either 


186  MATTERS  UNIMPORTANT   OR  MISLEADING.  (Ch.  8 


PROOF  AS  TO  KINDS  OF  APPLIANCES  USED  BY  OTHERS 

IN  SAME  LINE. 

113.  Where  the  negligence  charged  consists  of  the  nse  of  de- 
fective or  dangerous  machinery  or  appliances,  evidence 
that  safer  and  better  appliances  are  used  by  others  in 
the  same  line  of  business  is  admissible  to  show  the  jury 

X,,^-^^  what  was  ava^able  for  use  by  the  defendant,  and  thus, 
with  the  other  circumstances,  enable  them  to  deter- 
xaine  xrhether  he  ivas  negligent  in  using  the  appliances 
causing  the  damage. 

Where  the  question  of  negligence  relates  to  the  use  of  me- 
chanical appliances,  the  case  is  an  even  stronger  one  for  the 
admission  of  this  class  of  evidence  than  the  cases  under  the 
preceding  head.  The  only  method  the  jury  will  have  of  de- 
termining the  question  is  by  reference  to  what  appliances  are 
the  safest  and  best  for  the  purpose  for  which  defendant  uses 
them.  To  learn  what  are  the  safest  and  best,  the  jury  must  in- 
quire from  those  skilled  in  such  matters.  Such  witnesses  may 
state  that  the  appliances  used  by  defendant  were  unsafe.  This 
does  not  help  to  a  solution  of  the  question  of  negligence,  un- 
less it  also  appear  that  there  are  other  appliances  available  for 
the  defendant's  purpose  which  are  more  safe,  and  which,  as 
a  reasonably  prudent  person,  he  should  have  known  about,  and 
have  procured.  Now,  it  is  precisely  on  this  point  that  the 
evidence  as  to  what  appliances  are  in  use  by  other  persons  in 
similar  lines  becomes  material.  If  it  appear  that  a  safer  and 
better  appliance  was  in  common  use  at  the  time  defendant  was 
using  an  inferior  one,  the  jury  may  well  infer  that  the  defend- 

of  those  which  the  plaintiff  claimed  communicated  the  fire  was  among 
the  number,  and  without  showing  similarity  of  construction,  repair, 
or  management,  admissible?  The  court  say :  "The  question  has 
often  been  considered  by  the  courts  in  this  country  and  in  England, 
and  such  evidence  has.  we  think,  been  generally  held  admissible, 
as  tending  to  prove  the  possibility,  and  a  consequent  probability,  that 
some  locomotive  caused  the  fire,  and  as  tending  to  show  a  negligent 
habit  of  the  officers  and  agents  of  the  railroad  company."  The  fact 
that  one  of  two  particular  engines  was  charged  with  setting  the  fire 
did  not,  in  this  case,  prevent  the  court  from  going  to  the  full  length  of 
the  doctrine,  although  it  did  not  appear  that  the  other  fires  were 
caused  by  either  of  the  two  engines  in  question. 


«  114)  EVIDENCE   OF   CRIME.  ^°* 

ant  was  negligent  in  not  procuring  the  better  appliance."     In 
showing  that  a  safer  and  better  appliance  is  in  common  use, 
and  thus  available  to  defendant,  it  will  usually  be  necessary, 
and  there  can  be  no  objection  to  showing  it  by  separate  wit- 
nesses, each  of  whom  may  be  able  to  testify  as  to  a  smgle  case. 
In  some  cases,  perhaps  more  often  in  those  where  questions 
of  negligence  are  involved,  experiments  or  artificial  reproduc- 
tion of  conditions  and  happenings  are  offered  for  the  purpose 
of  throwing  light  upon  the  nature  and  results  of  the  actual 
happening   in  connection   with   which   neghgence   is   alleged. 
It  is  a  prerequisite  to  the  admissibility  of  such  experiments 
that  thev  be  performed  under  conditions  similar  to  those  which 
attended  the  original  event.     Given  similar  conditions,  how- 
ever  and  there  seems  to  be  no  good  reason  why  such  experi- 
ments may  not  furnish  a  basis  for  strong  logical  mference  re- 
specting the  facts  in  the  case,  and  the  courts  have_  usually 
held  that  under  these  conditions  such  evidence  is  admissible. 

EVIDENCE  OF  ONE  CRIME  NOT  ADMISSIBLE  TO  PROVE 

ANOTHER. 

114.  Evidence  of  the  commission  of  a  crime  other  than  the 
one  charged  is  not  admissible  to  prove  the  gmlt  of  the 
accused. 

However  bad  a  person  may  be,  however  guilty  of  crime,  it 
is  nevertheless  a  principle  in  our  system  of  administering  jus- 

26  The  question  of  the  admissibility  of  this  class  of  evidence  arose 
in  the  case  of  Carley  v.  Railway  Co..  48  Hun,  619,  1  N.  Y  Supp.^. 
The  charge  was  that  the  defendant  used  a  dangerous  and  defective 
spark  arrester.  A  witness  who  qualified  as  an  expert  was  asked  as 
to  the  kind  of  spark  arresters  used  on  the  West  Shore  road  at  the 
time  and  was  permitted  to  testify  that  a  different  and  safer  pattern 
of  spark  arrester  was  used  by  such  road.  On  appeal  the  court  say : 
"The  plaintiff  had  a  right  to  show,  if  she  ^o^^^- /^^*  ;^^^PP  ^/^^ 
used  by  the  defendant  was  not  a  reasonably  safe  and  suitable  ap- 
iZn^-  and,  to  that  end,  evidence  that  better  appliances  were  m 

^omm^n  use  upon  another  road  in  tbe  ^-«,.-^-,";^y  ^Z  TT  U^ 
27  Krueger  v.  Manufacturing  Co.  (Tex.  Civ.  App.)  8o  S  W.  1156^ 
But  the  «>urts  are  strict  with  respect  to  requiring  conditions  to  be 
prov^  to  have  been  similar  before  admitting  the  evidence.  Chicago 
&  fI  I.  Ry.  CO.  V.  Crose,  214  111.  602,  73  N.  E.  865,  105  Am.  St  Rep. 
135. 


188  MATTERS    UNIMPORTANT   OR   MISLEADING.  (Ch.  8 

tice  that  a  conviction  and  punishment  under  the  law  must  be 
for  some  specific  act  or  crime  proved  against  him  by  competent 
evidence  compelling  an  inference  of  guilt  as  to  such  specific 
act,  and  not  for  a  general  criminal  depravity  or  wickedness. 
The  commission  of  one  crime  or  of  a  series  of  crimes  different 
from  the  one  charged  may  tend  to  show  that  the  accused  is  a 
bad  man,  and  thus  make  the  inference  easy  that  he  might  have 
committed  the  crime  charged ;  but  it  does  not  compel  a  logical 
inference  that  he  did  in  fact  commit  it.  The  effect  of  "such 
evidence,  if  admitted,  would  invariably  be  to  prejudice  the 
jury  against  the  accused,  and  divert  their  minds  from  an  im- 
partial consideration  of  the  evidence  as  to  the  particular  crime 
charged.    It  is  therefore  excluded. ^^ 

2  8  People  V.  McLaughlin,  150  N.  Y.  865,  44  N.  E.  1017,  1022-1025 :  In 
this  case  the  defendant,  a  police  captain,  was  accused  of  extortion,  in 
having  illegally  obtained  $50  from  one  S.  by  means  of  threatened  in- 
terference with  certain  work  S.  was  performing,  in  removing  some  old 
buildings.  It  appeared  that  the  $50  was  obtained  from  S.,  not  by  the 
defendant  personally,  but  by  one  B.,  a  subordinate  under  the  defendant. 
Evidence  on  the  trial  was  offered  and  admitted  showing  that  on  other 
occasions  the  defendant  had  obtained,  by  similar  illegal  means,  money 
from  other  persons  through  the  said  subordinate,  B.  The  court  of 
appeals  held  this  erroneous,  saying  (page  3S6  of  150  N.  Y.,  page  1023 
of  44  N.  E.) :  "It  is  an  elementary  principle  that  the  commission  of 
one  crime  is  not  admissible  in  evidence  to  establish  the  guilt  of  a 
party  of  another.  But.  if  the  evidence  is  material  and  relevant  to  the 
issue,  it  is  not  inadmissible  simply  because  it  tends  to  prove  the  de- 
fendant guilty  of  another  crime.  *  *  *  There  is,  we  think,  a  clear 
and  important  distinction  between  allowing  evidence  of  the  commission 
of  another  crime  to  show  motive,  intent,  or  guilty  knowledge,  or  where 
the  crime  proved  is  an  incident  to,  a  part  of,  or  leads  up  to,  the  crime 
with  which  a  defendant  is  charged,  and  a  case  where  the  crime  prov- 
ed is  entirely  independent  of,  and  disconnected  with,  the  crime  alleged 
to  the  indictment.  *  *  *  Manifestly,  this  evidence  [the  evidence 
of  other  crimes  in  the  case  at  bar]  was  not  admitted  to  prove  guilty 
knowledge,  intent,  motive,  or  notice;  nor  did  the  transactions  thus 
proved  have  any  relation  to  or  connection  with  the  transaction  upon 
which  the  indictment  was  based.  They  were  entirely  distinct  and 
separate,  had  with  other  persons,  at  other  times,  under  different  cir- 
cumstances, and  constituted  different  crimes.  They  formed  no  link 
in  the  chain  of  circumstances  or  facts  which  led  up  to  the  transaction 
involved,  and  were  no  part  of  it.  We  think  this  evidence  did  not  fall 
within  any  exception  to  the  general  rule,  and  was  therefore  improp- 
erly received." 

People  V.  Ck)Hins,  144  Mich.  121,  107  N.  W.  1114.     In  tliis  case  the 


115)  PHYSICAL   OR   MENTAL   STATE.  189 


PROOF  AS  TO  INTENT,  MOTIVE,  OR  PHYSICAL  OR  MEN- 
TAL STATE. 

115.  Where  the  question  is  as  to  knowledge,  intent,  motive, 
or  any  bodily  or  mental  state,  evidence  of  other  acts 
done,  shoTiring  the  existence  of  such  kno^vledge,  intent, 
motive,  or  bodily  or  mental  state,  are  admissible,  even 
though  it  involves  the  proof  of  other  crim.es. 

Evidence  admitted  under  this  principle,  in  its  effect,  must  be 
carefully  confined  within  the  limits  for  which  it  is  admitted. 
The  commission  of  one  crime  has  no  bearing  as  tending  to 
prove  the  commission  of  another,  but  the  commission  of  a 
series  of  crimes  of  the  same  nature  may  have  a  bearing  in 
showing  a  guilty  knowledge.^ ^  Where  the  crime  charged 
is  receiving  stolen  goods,  the  possession  of  counterfeit  money, 
or  the  like,  the  knowledge  of  the  accused  person  becomes  one 
of  the  material  facts  in  issue,  and  other  acts  of  similar  nature 
are  admissible.^"    So,  also,  on  the  question  of  malice,  evidence 

accused,  was  charged  with  murdering  by  arseuic  poison  a  member  of 
her  household.  It  was  held  that  evidence  that  another  member  of  the 
household  had  recently  died  from  arsenic  poisoning  was  not  admis- 
sible as  evidence  that  there  was  arsenic  in  the  house.  The  exclusion 
of  the  evidence  was  put  squarely  on  the  ground  that  it  was  not  rele- 
vant upon  the  issue  which  it  was  offered  to  prove.  For  a  suggestive 
note  on  this  subject,  see  11  Harvard  Law  Rev.  189. 

2  9  In  Reg.  V.  iPrancis  (1874)  L.  R.  2  Grown  Cas.  128,  upon  the  in- 
dictment of  X.  for  obtaining  money  by  false  pretenses,  by  repre- 
senting a  ring  to  be  a  diamond  ring,  evidence  was  offered,  in  order 
to  prove  guilty  knowledge  on  X.'s  part,  that  he  had,  shortly  before, 
offered  other  false  articles  to  other  pawnbrokers.  The  evidence  was 
held  admissible.  Lord  Coleridge,  C.  J.,  says :  "It  tends  to  show  that 
he  was  pursuing  a  course  of  similar  acts,  and  thereby  it  raises  a  pre- 
sumption that  he  was  not  acting  under  a  mistake.  It  is  not  con- 
elusive,  for  a  man  may  be  many  times  under  a  similar  mistake,  or  may 
be  many  times  the  dupe  of  another ;  but  it  is  less  likely  he  should 
be  so  often  than  once,  and  every  circumstance  which  shows  he  was 
not  under  a  mistake  on  any  one  of  these  occasions  strengthens  the 
presumption  that  he  was  not  on  the  last;  and  this  is  amply  borne 
out  by  the  authorities."     Miller  v.  State.  (38  Miss.  221,  8  South.  273. 

30  Thus,  in  Com.  v.  Russell.  156  Mass.  196,  30  N.  E.  763,  the  charge 
against  the  defendant  was  the  uttering  of  a  forged  check,  and  the 
prosecution  was  permitted  to  show  that  on  the  occasion  of  his  ar- 
rest he  had  in  his  possession  three  other  checks  which  were  forged, 


190  MATTERS   UNIMPORTANT   OR   MISLEADING.  (Ch.  8 

of  other  criminal  acts  leading  up  to  the  one  in  question,  which 
show  the  state  of  mind  of  the  accused,  is  admissible. ^^  In. 
the  proof  of  certain  crimes,  where  motive  is  an  important  ele- 
ment, evidence  of  motive  will  involve  the  placing  before  the 
jury  of  a  plan  or  scheme  carried  out  or  attempted  by  the  ac- 
cused, which  may  include  the  commission  of  other  crimes.  In 
such  cases  the  proof  of  those  other  crimes  is  admissible.** 

and  that  he  had  previously  passed  two  others  which  were  forgeries. 
Barker,  J.,  says  (page  397,  156  Mass.,  30  N.  E.  763) :     "The  admission 
of  such  evidence  is  necessary,  because  guilty  knowledge  is  a  fact  not 
susceptible  of  proof  by  direct  evidence,  and  can  rarely  be  shown  by 
explicit  admissions,  but  only  by  acts  and  conduct."    To  the  same 
effect  are  Lindsey  v.  State,  38  Ohio  St.  507,  513 ;  People  v.  Marion, 
29  Mich.  31,  38;  State  v.  Minton,  116  Mo.  605,  22  S.  W.  808.     Upon 
the  same  principle,  evidence  of  other  instances  of  the  receipt  of  stolen 
property  from  the  same  person  is  allowed,  to  prove  guilty  knowledge. 
Opperman  v.  People,  56  N.  Y.  591;  Shriedley  v.  State,  23  Ohio  St. 
130,  142.     As  to  possession  of  counterfeit  money,  see  People  v.  Far- 
rell,  30  Cal.  316.     Evidence  of  false  representations  made,   for  th& 
purpose  of  obtaining  credit,  to  different  persons  at  about  the  same 
time,  and  in  the  same  manner,  as  made  to  complainant,  is  allowed  to 
show  fraudulent  intent.     Mayer  v.  People,  80  N.  Y.  364,  376 ;  Tarbox 
V.  State,  38  Ohio  St.  581 ;  Devoto  v.  Com.,  3  Mete.  (Ky.)  417.     Other 
acts  or  crimes  bearing  on  question  of  intent:     New  York  Mut.  Life 
Ins.  Co.  V.  Armstrong,  117  U.  S.  591,  6  Sup.  Ct.  877,  29  L.  Ed.  997; 
Continental  Ins.  Co.  of  New  York  v.  Insurance  Co.  of  Pennsylvania, 
2  C.  C.  A.  535,  51  Fed.  884 ;  People  v.  O'Sullivan,  104  N.  Y.  481,  10 
N.  E.  880,  58  Am.  Rep.  530 ;  Com,  v.  Pipes,  158  Pa.  25,  27  Atl.  839 ; 
Com.  V.  Robinson,  146  Mass.  571,  16  N.  E.  452 ;  Com.  v.  Bradford,  126 
Mass.  42 ;  Taylor  v.  State,  22  Tex.  App.  529,  545,  3  S.  W.  753,  58  Am. 
Rep.  656;  Hawes  v.  State,  88  Ala.  37,  67,  7  South.  302;  Fabian  v. 
Traeger,  215  111.  220,  74  N.  E.  131.     Previous  acts  of  adultery  with 
same  person,  as  showing  an  adulterous  disposition:     Funderburg  v. 
State,  23  Tex.  App.  392,  5  S.  W.  244;  Hicks  v.  State,  86  Ala.  30,  5 
South.  425. 

31  Friend  v.  Hamill,  34  Md.  298,  305;  Grace  v.  McArthur,  76  Wis. 
641,  651,  45  N.  W.  518;  State  v.  Palmer,  65  N.  H.  216,  20  Atl.  6;  Bur- 
nett V.  State,  14  Lea  (Tenn.)  439. 

3  2  Com.  V.  Robinson  (1888)  146  Mass.  571,  16  N.  E.  452.  Upon  the 
trial  of  X.  for  the  murder  of  M.,  evidence  was  offered  of  a  scheme 
by  X.  to  kill  Y.,  then  to  induce  M.  to  make  X.  beneficiary  under  a 
policy  under  which  Y.  had  been  beneficiary,  and  then  to  kill  M.  Is 
the  evidence  admissible?  Allen,  J.,  says:  "In  such  cases  there  is 
a  distinct  and  significant  probative  effect,  resulting  from  the  continu- 
ance of  the  same  plan  or  scheme,  and  from  the  doing  of  other  acts 
hi  pursuance  thereof.     It  is  somewhat  of  the  nature  of  threats,  or 


§  116)  PHYSICAL   OR  MENTAL  STATE.  191 

In  one  case  A.  sued  X.  on  a  note,  and  X.  alleges  that  his 
indorsement  was  procured  by  a  fraudulent  trick  and  without 
any  intention  on  his  part  to  indorse  the  note.  A.  is  a  bona 
fide  holder  for  value,  having  purchased  the  note  from  the  per- 
son who  obtained  X.'s  indorsement.  X,  offers  evidence  of 
the  perpetration  of  similar  tricks  on  other  persons  by  those 
who  have  obtained  the  indorsement  from  him.  Such  evidence 
is  admissible  as  showing  a  general  scheme  to  defraud.*^ 

The  courts  are  not  always  uniform  in  their  application  of 
the  principle  upon  which  this  class  of  evidence  is  admitted,  and 
we  find  conflicting  decisions.  There  is  also  a  tendency  not 
to  extend  the  doctrine,  but  to  confine  it  to  cases  where  there 
is  very  clear  reason  for  its  application  on  account  of  the  neces- 
sity of  showing  motive,  intent,  or  guilty  knowledge.** 

declarations  of  intention,  but  more  especially  of  the  preparations  for 
the  commission  of  the  crime  which  is  the  subject  of  the  indictment. 
*  *  *  Suppose,  for  further  example,  one  is  charged  with  breaking 
a  bank,  and  there  is  evidence  that  he  had  made  preliminary  examina- 
tions from  a  neighboring  room ;  the  fact  that  his  occupation  of  such 
room  was  accomplished  by  a  criminal  breaking  and  entering  would 
not  render  the  evidence  incompetent."  See,  also,  New  York  Mut.  Life 
Ins.  Co.  V.  Armstrong,  117  U.  S.  591,  6  Sup.  Ct.  877,  29  L.  Ed.  997 ; 
Phillips  V.  People,  57  Barb.  (N.  Y.)  353,  364 ;  State  v.  Weutworth,  87 
N.  H.  196,  211 ;  Moline-Milbum  Co.  v.  Franklin,  37  Minn.  137,  33  N. 
W.  323 ;  Bernheim  v.  Dibrell,  66  Miss.  199,  203,  5  South.  693 ;  Goersen 
v.  Com.,  99  Pa.  388,  398 ;  State  v.  Reed,  53  Kan.  767,  37  Pac.  174,  42 
Am.  St.  Rep.  322. 

33  Yakima  Valley  Bank  v.  McAllister,  37  Wash.  566,  79  Pac.  1119, 
1  L.  R.  A.  (N.  S.)  1075,  107  Am.  St  Rep.  823 ;  Fabian  v.  Traeger,  215 
111.  220,  74  N.  E.  131 ;  The  Queen  v.  Rhodes,  1  Q.  B.  D.  77.  See,  also, 
numerous  civil  cases  cited  in  preceding  notes.  But  see,  contra,  Sey- 
mour V.  Bruske,  140  Mich.  244,  103  N.  W.  613,  where  it  was  held,  in 
an  action  for  the  conversion  of  logs,  that  evidence  of  attempted  con- 
version by  defendant  of  logs  belonging  to  others  than  plaintiff  was  in- 
competent. This  case,  it  is  believed,  represents  the  prevailing  tend- 
ency respecting  this  class  of  evidence  in  ordinary  civil  cases. 

34  Reg.  V.  Oddy  (1851)  2  Denison,  Crown  Cas.  264.  Upon  the  indict- 
ment of  X.  for  breaking  into  a  warehouse  and  stealing  therein  50 
yards  of  cloth,  evidence  that  other  pieces  of  cloth  were  found  in  X.'s 
possession,  which  had  been  stolen  three  months  previous,  is  inad- 
missible. L(Ord  Campbell,  C.  J.,  says:  "It  would  not  be  direct  evi- 
dence of  the  particular  fact  in  issue,  viz.,  that  at  the  time  of  his  re- 
ceiving these  specific  articles  he  knew  them  to  be  stolen.  The  eases 
of  uttering  with  a  guilty  knowledge  certainly  go  very  far,  and  I 


192  MATTERS    UNIMPORTANT   OR   MISLEADING,  (Ch.  8 

1151.^.    "Where,   however,  the   bodily  or  meutal  state  is  not  a 
material  fact  in  issue,  evidence  as  to  such  state  is  in- 
admissible. 

The  fact  that  a  person  wishes  or  hopes  to  do  a  thing,  or 
that  the  thing  was  done  because  of  a  particular  reason,  or  the 
existence  of  an}^  mental  or  physical  condition  with  respect  to 
and  at  the  time  of  the  doing  of  an  act,  while  it  may  have  some 
psychological  connection  with  the  act,  and  may  from  an  ana- 
lytical standpoint  suggest  some  logical  inference  with  respect 
to  the  act,  it  is  not  such  evidence  as  the  law  recognizes  as  a 
basis  for  legal  inference.  Witnesses,  therefore,  cannot,  in  tes- 
tifying as  to  facts,  as  a  rule,  give  their  motives,  wishes,  hopes, 
mental  states,  feelings,  or  physical  conditions.  Such  evidence 
is  generally  regarded  as  irrelevant  and  of  too  little  probative 
force  to  justify  its  use.^^ 

should  be  very  unwilling  to  apply  their  principle  generally  to  criminal 
law."  See,  also,  Ck)leman  v.  People,  58  N.  Y.  555;  Strong  v.  State, 
86  Ind.  208,  44  Am.  Rep.  292;  Shaffner  v.  Com.,  72  Pa.  60,  13  Am. 
Rep.  649 ;  Billings  v.  State,  52  Ark.  303,  12  S.  W.  574. 

3  5  Sampson  v.  Hughes,  147  Cal.  62,  81  Pac.  292;  Dunbar  v.  Arm- 
strong, 115  111.  App.  549;  Bamewell  v.  Stephens,  142  Ala.  609,  38 
South.  662. 


116)  CHARACTEE, 


193 


CHAPTER  IX. 

CHARACTER. 

116.  General  Rule  as  to  the  Exclusion  of  Character  Evidence. 

117-118.  Rule  in  Criminal  Cases. 

119.  Character  as  a  Fact  in  Issue. 

120.  Character  as  an  Evidentiary  Fact 

121.  Character  of  Witness  for  Veracity. 

122.  Character  When  Material — How  Proved. 

123.  Particular  Acts  as  Evidence  of  Character. 

124.  Opinion  Inadmissible. 

125.  General  Reputation— Proved  by  Direct  Testimony. 

126.  Reputation  as  to  Act  Charged  Inadmissible. 

127.  General  Reputation  Must  be  That  \Miich  a  Person  Bears 

in  His  Own  Community. 

128.  Impeaching  Evidence  Introduced  First. 


GENERAI.  RULE  AS  TO  THE  EXCLUSION  OF  CHARACTER 

EVIDENCE. 

116.    Tlie  character  of  a  person  cannot,  as  a  general  mle,  be 
shown  for  the  purpose  of  proving  his  conduct. 

Where  the  question  is  whether  X.  did  or  did  not  do  a  cer- 
tain act,  his  character,  if  proved,  might  throw  a  strong  light 
upon  the  issue,  and  justify  an  inference  as  to  the  act  charged. 
It  has  been  well  settled,  however,  from  the  earliest  period, 
that  such  evidence  is  not,  in  general,  admissible  either  in  civil 
or  criminal  cases.^  The  reason  for  excluding  this  class  of 
evidence  is  its  unreliability  in  that  it  may  be  easily  affected  by 
passion  or  prejudice  on  the  part  of  the  witness  testifying,^  and 
also  the  danger  that  it  may  be  given  undue  weight  by  the  jury. 
It  is  the  same  spirit  of  fairness  which  concedes  everything  to 
the  accused,  and  throws  all  burdens  upon  the  accuser,  that  char- 

lAttornev  General  v.  Bowman  (1791)  2  Bos.  &  P.  532,  note  a; 
Houghtaling  v.  Kelderhouse  (1&48)  2  Barb.  (N.  T.)  149 ;  Woodruff  v. 
Whittlesey  (1786)  Kirb.  (Conn.)  60,  62;  Humphrey  v.  Humphrey  (1828) 
7  Conn.  117;  Matthews  v.  Huntley  (1838)  9  N.  H.  146;  Anderson's 
Ex'rs  V.  Long  (1823)  10  Serg.  &  R.  (Pa.)  55,  61. 
m'kei:,v.ev.(2d  ed.) — 13 


194  CHARACTER.  (Ch.  9 

acterizes  the  English  law  of  evidence.^  In  many  civil  cases 
the  exclusion  of  character  evidence  rests  also  upon  the  very- 
slight  value  which  it  has  to  establish  any  fact  in  issue,  and  the 
danger  of  leading  the  jury  into  collateral  inquiry  which  will 
confuse  and  obscure  the  real  issues.^ 

In  civil  suits  the  attempted  use  of  character  evidence  usually 
arises  in  cases  of  tort  where  there  is  some  violent,  malicious, 
or  fraudulent  element  involved,*  or  in  cases  of  contract  where 


2  In  Reg.  V.  Rowton,  Leigh  &  O.  520,  Willes,  J.,  discussing  the 
question,  says  (page  540) :  "It  is  a  mistalie  to  suppose  that,  because 
the  prisoner  only  can  raise  the  question  of  character,  it  is  therefore 
a  collateral  issue.  It  is  not.  Such  evidence  is  admissible  because  it 
renders  less  probable  that  what  the  prosecution  has  averred  is  true. 
It  is  strictly  relevant  to  the  issue ;  but  it  is  not  admissible  upon  the 
part  of  the  prosecution,  because,  as  my  Brother  Martin  says,  if  the 
prosecution  were  allowed  to  go  into  such  evidence,  we  should  have  the 
whole  life  of  the  prisoner  ripped  up,  and;  as  has  been  witnessed  else- 
where, upon  a  trial  for  murder  you  might  begin  by  showing  that, 
when  a  boy  at  school,  the  prisoner  had  robbed  an  orchard,  and  so  on 
through  the  whole  of  his  life ;  and  the  result  would  be  that  the  man 
on  his  trial  might  be  overwhelmed  by  prejudice,  instead  of  being  con- 
victed on  that  affirmative  evidence  which  the  law  of  this  country  re- 
quires. The  evidence  is  relevant  to  the  issue,  but  is  excluded  for 
reasons  of  policy  and  humanity,  because  although,  by  admitting  it, 
you  might  arrive  at  justice  in  one  case  out  of  a  hundred,  you  would 
probably  do  injustice  in  the  other  ninety-nine." 

3  In  Houghtaling  v.  Kelderhouse,  supra,  A.  sued  X.  for  slander  in 
saying  that  A.  had  killed  his  (X.'s)  horses,  by  ix>isoning  them.  X.,  in 
defense  of  the  action,  introduced  evidence  tending  to  show  the  truth 
of  the  charge,  and,  to  meet  this,  A.  offered  evidence  of  his  general 
good  character,  which  was  excluded.  Parker,  J.,  says  (page  152  of  2 
Barb.  [N.  T.J) :  "But  in  a  civil  suit,  where  the  personal  rights  of  op- 
posite parties  are  to  be  weighed  in  a  nicely  adjusted  balance,  no 
proof  except  that  relating  to  the  facts  in  controversy  should  be  ad- 
mitted to  turn  the  scale." 

4  Evidence  of  good  character  is  inadmissible  in  an  action  for  tres- 
pass for  assault  and  battery  to  show  that  defendant  did  not  commit 
the  act,  or  to  rebut  malice,  Soule  v.  Bruce,  67  Me.  584 ;  Porter  v. 
Seiler,  23  Pa.  424,  62  Am.  Dec.  341 ;  in  an  action  for  damages  for  false 
representations,  Gough  v.  St.  John,  16  Wend.  (N.  Y.)  646 ;  for  wrong- 
fully killing  plaintiff's  husband,  Vawter  v.  Hultz,  112  Mo.  633,  639,  20 
S.  W.  689;  nor  in  an  action  for  damages  for  homicide,  where  self-de- 
fense is  set  up,  Morgan  v.  Bamhill,  118  F.  24,  55  C.  C.  A.  1.  Evidence 
of  the  bad  character  of  the  plaintiff  is  not  admissible  in  mitigation 
of  damages  in  an  action  of  assault  and  battery.  Corning  v.  Corning, 


§  116)         EULE  AS  CHAKACTER  EVIDENCE.  195 

fraud  is  charged.^  Many  times  in  such  cases  the  question  of 
the  commission  of  a  criminal  act  arises,  but  it  is  uniformly 
held  that  this  is  no  ground  for  the  admission  of  character  evi- 
dence.* The  question  of  negligence  is  responsible  for  many 
cases  where  it  has  been  sought  to  introduce  this  species  of  evi- 
dence. Showing  the  act  of  negligence  in  issue  by  proving  gen- 
eral carelessness  and  unskillfulness  is  a  favorite  method,  as  is 
also  disproving  negligence  by  proving  great  skill.'^     It  seems 

6  N.  Y.  97,  104 ;  Bruce  v.  Priest,  5  Allen  (Mass.)  100 ;  nor  in  an  action 
for  seduction  of  plaintiff's  daughter,  Dain  v.  WyckofC,  18  N.  Y.  45,  72 
Am.  Dec.  493. 

5  Evidence  of  bad  character  of  plaintiff  in  an  action  on  promissory 
note  is  not  admissible  to  show  that  he  was  not  a  bona  fide  holder,  but 
was  a  party  to  fraud  affecting  the  note.  Battles  v.  Laudenslager,  84 
Pa.  446.  Nor  is  evidence  of  good  character  admissible  to  disprove 
charges  of  fraud  in  an  attachment  suit,  Curtis  v.  Hoadley,  29  Kan. 
566:  nor  in  an  equity  suit  to  have  an  alleged  fraudulent  transaction 
set  aside,  Dudley  v.  McCluer,  65  Mo.  241,  27  Am.  Rep.  273. 

6  Evidence  of  good  character  is  not  admissible  in  an  action  on  a 
policy  of  insurance  to  rebut  the  charge  that  plaintiffs  themselves 
burned  down  the  buildings,  American  Fire  Ins.  Co.  v.  Hazen,  110  Pa. 
530,  537,  1  Atl.  605  (contra,  Mosley  v.  Insurance  Co.,  55  Yt.  142,  152) ; 
nor  in  an  action  for  damages  "for  willfully,  unlawfully,  and  mali- 
ciously burning  a  barn  and  its  contents,"  Gebhart  v.  Burkett,  57  Ind. 
378;  nor  in  an  action  of  trover  for  the  conversion  of  a  package  of 
money,  where  the  defendant  is  charged  with  embezzlement,  Wright 
V.  McKee,  37  Vt.  161.  Evidence  of  character  for  honesty  is  not  admis- 
sible in  an  action  by  plaintiff  for  services  rendered  to  defendant  as 
bookkeeper,  where  defendant  claims  that  plaintiff  made  entries  in  the 
books  without  his  knowledge  or  consent ;  character  not  being  in  any 
sense  an  issue  in  the  case.  Mattingly  v.  Shorten,  27  Ky.  Law  Rep. 
426,  85  S.  W.  215. 

7  McDonald  v.  Inhabitants  of  Savoy,  110  Mass.  49,  where  the 
plaintiff  attempted  to  show  that  he  was  free  from  negligence  con- 
tributing to  an  injurj'  received  while  driving  on  defendant's  highway, 
which  he  alleged  to  be  defective,  by  evidence  that  he  was  commonly 
careful  and  skillful.  Evidence  of  plaintiff's  character  for  sobriety 
is  inadmissible  to  meet  evidence  that,  at  the  time  of  the  injury  al- 
leged to  have  been  caused  by  defendant's  negligence,  plaintiff  was 
intoxicated.  Carr  v.  Railway  Co.,  163  Mass.  360,  40  N.  E.  185.  But 
see  Illinois  Cent.  R.  Co.  v.  Prickett.  210  111.  140,  71  N.  E.  435.  In 
this  case,  which  was  an  action  for  the  death  of  an  engineer  on  de- 
fendant's road,  it  appeared  that  the  engineer  and  fireman  were  both 
killed  by  the  explosion  of  the  boiler,  and  there  were  no  witnesses 
who  observed  what  the  engineer  did  immediately  before  the  explosion. 


196  CHARACTER.  (Oh.  9 

surprising,  when  one  considers  the  unanimity  with  which  the 
courts  hold  evidence  of  this  sort  inadmissible,  that  the  attempts 
to  use  it  should  be  so  numerous. 


RULE  IN   CRIMINAL  CASES. 

117.  In  criminal  cases  evidence  may  be  given  by  tbe  accused 

to  show  sucli  traits  of  cliaracter  as  tend  to  make  it  im- 
probable tbat  be  would  or  could  have  committed  tbe 
crime  charged. 

118.  The  introduction  of  such  evidence  by  the  accused  opens 

the  door  for  the  prosecution  to  meet  it  by  showing  such 
traits  as  would  lead  to  an  inference  of  guilt.  The 
prosecution  cannot  introduce  the  evidence  unless  the 
accused  first  enters  upon  the  subject. 

The  rule  with  respect  to  the  use  of  character  evidence  in 
criminal  cases  was  in  early  times  confined  to  capital  offenses.^ 
It  arose  out  of  a  desire  to  give  the  accused  person  every  chance, 
and  it  was  considered  that  evidence  of  good  character  might 
justify  an  inference  that  the  accused  would  not  have  committed 
the  crime  charged,  and  that  therefore  the  crime  was  not  in 
fact  committed  by  him.  The  rule  was  subsequently  extended 
to  all  criminal  cases.**     The  same  condition  as  to  the  accused 

It  was  held  that  under  these  circumstances  evidence  as  to  the  gen- 
eral reputation  of  the  engineer  as  a  careful  and  competent  man,  and 
as  a  sober  man,  was  admissible  as  bearing  on  the  question  of  his 
exercise  of  ordinary  care.  To  the  same  effect  see  City  of  Chicago  v. 
Doolan,  99  111.  App.  143,  where  the  part}'  claiming  damages  was  in- 
sane and  unable  to  be  present  at  the  trial.  And  see,  also,  Missouri 
Pac.  Ry.  Co.  v.  Moffatt,  GO  Kan.  113,  55  Pac.  837,  72  Am.  St.  Rep.  343, 
and  comment  thereon  in  12  Harvard  Law  Rev.  568. 

8  Caneemi  v.  People,  IG  N.  Y.  .501,  507. 

9  Attorney  General  v.  Bowman  (1701)  2  Bos.  &  P.  532,  note  a.  Up- 
on the  trial  of  an  information  against  X.  for  keeping  false  weights, 
and  for  offering  to  corrupt  an  officer,  X.  offered  testimony  as  to  his 
character.  The  evidence  was  excluded,  on  the  groimd  that  it  was 
not  a  criminal,  but  a  penal,  action.  Eyre.  C.  B..  said:  "I  cannot  ad- 
mit this  evidence  in  a  civil  suit.  The  offense  imputed  by  the  infor- 
mation is  not  in  the  shape  of  a  crime.  It  would  be  contrary  to  the 
true  line  of  distinction  to  admit  it,  which  is  this :  that,  in  a  direct 
prosecution  for  a  crime,  such  evidence  is  admissible ;  but  where  the 
prosecution  is  not  directly  for  the  crime,  but  for  the  i>enalty,  as  in 


§§  117-118)      RULE  IN  CEIMINAL  CASES. 


107 


taking  the  initiative  was  imposed.  In  fact,  whenever  it  is 
sought  to  use  character  evidence,  whatever  the  crime  charged, 
the  greatest  strictness  is  enforced  by  the  courts  with  respect  to 
this  condition.  The  accused  must  first  enter  upon  the  sub- 
ject,^" and  it  must  be  a  dehberate  taking  up  of  this  Hne  of  evi- 
dence. The  mere  fact  that  reference  is  made,  in  the  evidence 
produced  by  the  accused,  to  his  character  or  certain  traits  there- 
of, is  not  suificient  to  permit  the  prosecution  to  enter  upon  it. 
The  courts  generally  have  refused  to  extend  the  principle 
beyond  cases  which  were  strictly  criminal  in  their  nature.^ ^ 
The  evidence  is  in  its  nature  circumstantial,  and  is  to  be  given 
such  weight  as  the  jury  think  proper.  It  has  no  peculiar  value- 
beyond  other  circumstantial  evidence,  nor,  on  the  contrary,  is.- 

this  information,  it  is  not."  Com.  v.  Hardy  (1807)  2  Mass.  317.  In 
this  case,  on  the  trial  of  X.  for  murder,  evidence  as  to  his  previous 
good  character  was  offered.  Parson,  C.  J.,  said  that  he  was  of  the 
"opinion  that  a  prisoner  ought  to  be  permitted  to  give  in  evidence  his 
general  character  in  all  cases,  for  he  did  not  see  why  it  should  be 
evidence  in  a  capital  case,  and  not  in  cases  of  an  inferior  degree.  In 
doubtful  cases,  a  good  general  character,  cleaiiy  established,  ought  to 
have  weight  with  the  jury;  but  it  ought  not  to  prevail  against  the 
positive  testimony  of  credible  witnesses.  Whenever  the  defendant 
chooses  to  call  witnesses  to  prove  his  general  character  to  be  good, 
the  prosecution  may  offer  witnesses  to  disprove  their  testimony. 
But  it  is  not  competent  for  the  prosecutor  to  go  into  this  inquiry  until 
the  defendant  has  voluntarily  put  his  character  in  issue,  and  in  such 
case  there  can  be  no  examination  as  to  particular  facts."  The  other 
judges  "were  not  prepared  to  say  that  such  testimony  should  be  admit- 
ted on  all  criminal  prosecutions,  but  that  in  capital  cases  it  clearly 
might  be." 

10  Hamilton  v.  State,  M  Ohio  St.  82;  People  v.  White,  14  Wend.  (N.' 
Y.)  Ill ;  People  v.  Fair,  43  Cal.  1.37,  149 ;  Givens  v.  Bradley,  3  Bibb 
(Ky.)  192,  6  Am.  Dec.  046.  But,  if  the  accused  takes  the  stand  as  a 
witness,  his  character  for  veracity  is  subject  to  impeachment,  the  same 
as  that  of  any  witness.  McDonald  v.  Com.,  86  Ky.  10,  4  S.  W.  687 ;  Reg. 
V.  Rowton.  1  Leigh  &  C.  520;  Reg.  v.  Turberfiold,  Id.  49.").;  Com.  v. 
O'Brien,  119  Mass.  342,  20  Am.  Rep.  32.5;  Snyder  v.  Com.,  85  Pa.  519; 
State  V.  Lapage,  57  N.  H.  245,  24  Am.  Rep.  69. 

iiGough  V.  St.  .John,  16  Wend.  (N.  Y.)  646,  653;  Low  v.  Mitchell, 
18  Me.  372 ;  Humphrey  v.  Humphrey,  7  Conn.  116 ;  Day  v.  Ross.  154 
:»Iass.  13,  27  N.  E.  676 ;  America  Fire  Ins.  Co.  v.  Ilazen,  110  Pa.  530,  1 
■  .\tl.  605.  But  in  a  recent  case  in  New  Hampshire  the  doctrine  was 
I  ?''!  to  :»;iii!y  w'^"''"e  tl'e  i -sue  in  a  c'vil  action  was  as  to  t'le  conuiiis- 
sic.u  of  a  criiulual  act.     V.'arnur  v.  Warner,  G'J  N.  TL  137,  -ii  All.  i;JS. 


198  CHARACTER.  (Cll.  9 

its  effect  limited  to  cases  where,  on  the  other  evidence,  the 
jury  are  left  in  doubt.  It  is  to  be  treated  just  as  other  cir- 
cumstantial evidence,  and  to  be  considered  with  and  as  a  part 
of  the  whole  case.^^  Without  it  the  other  evidence  might  be 
convincing,  and  yet  in  itself  it  may  be  the  foundation  for  that 
doubt  which  is  necessary  to  an  acquittal. ^^  We  many  times 
find  the  proposition  laid  down,  in  substance,  that  where  the 
act  is  one  of  great  and  atrocious  criminality,  and  is  strongly 
proved  by  the  other  evidence,  there  evidence  of  good  character 
cannot  avail.  This  is  erroneous  as  a  statement  of  a  principle. 
What  is  in  the  mind  of  the  court  is,  without  doubt,  that,  under 
such  circumstances,  evidence  of  previous  good  character  would 
be  of  little  weight.  The  very  fact  that  it  is  competent  to  go  to 
the  jury  shows  that  it  may  avail. ^* 

12  Remsen  v.  People,  43  N.  Y.  6 ;  Stover  v.  People,  56  N.  Y.  315,  319; 
U.  S.  V.  Gunnell,  5  Mackey  (D.  C.)  196 ;  Com.  v.  Cleary,  135  Pa.  64,  82, 
19  Atl.  1017,  8  L.  R.  A.  301 ;  State  v.  Rodman,  62  Iowa,  456,  17  N.  W. 
663 ;  State  v.  Spendlove,  47  Kan.  160,  168,  28  Pac.  994. 

13  People  V.  Moett,  23  Hun  (N.  Y.)  60,  65;  State  v.  Daley,  53  Vt. 
442,  446,  38  Am.  Rep.  694;  Stewart  v.  State,  22  Ohio  St  477,  485; 
Armor  v.  State,  63  Ala.  173. 

14  In  Com.  V.  Webster,  5  Cush.  (Mass.)  295,  52  Am.  Dec.  711,  the 
court  falls  into  this  inaccurate  method  of  statement.  At  page  325 
of  5  Cush.  (Mass.)  it  is  said:  "But,  where  it  is  a  question  of  great 
and  atrocious  criminality,  the  commission  of  the  act  is  so  unusual. — 
so  out  of  the  ordinary  course  of  things,  and  beyond  common  experi- 
ence; it  is  so  manifest  that  the  offense,  if  perpetrated,  must  have 
been  influenced  by  motives  not  frequently  operating  upon  the  human 
mind,— that  evidence  of  character,  and  of  a  man's  habitual  conduct 
under  common  circumstances,  must  be  considered  far  inferior  to  what 
it  is  in  the  instance  of  accusations  of  a  lower  grade.  Against  facts 
strongly  proved,  good  character  cannot  avail."  That  the  real  ques- 
tion is  merely  one  of  weight  of  evidence  was  understood,  as  the  fol- 
lowing language  on  the  same  page  shows :  "But  still,  even  with  r^ 
gard  to  the  higher  crimes,  testimony  of  good  character,  though  of  loss 
avail,  is  competent  evidence  to  the  jury,  and  a  species  of  evidence  which 
the  accused  has  a  right  to  offer."  See  Cancemi  v.  People,  16  N.  Y. 
501,  505-507,  for  a  very  clear  statement  of  the  effect  of  character  evi- 
dence. In  Mississippi  the  courts  have  held  to  the  doctrine  "that  good 
character  avails  defendant  only  in  a  doubtful  case,"  and  have  held 
the  evidence  inadmissible  unless  the  guilt  of  the  accused  on  the  other 
evidence  is  doubtful.  McDaniel  v.  State,  8  Smedes  &  M.  (Miss.)  401, 
416,  47  Am.  Dec.  93 ;  Chase  v.  State,  46  Miss.  683,  707 ;  also,  in  Ten- 
nessee, Bennett  v.  State,  8  Humph.  (Tenn.)  118,  125 ;  and  In  Florida, 


§  119)  CHARACTER  AS  A  FACT  IN  ISSUE.  199 

It  is  to  be  observed  that,  where  character  evidence  is  ad- 
missible, there  is  a  limit  to  the  sort  of  evidence  which  will  be 
received.  A  person's  character  is  made  up  of  many  different 
traits.  One  trait,  for  example,  that  he  is  a  passionate,  quick- 
tempered person,  may  properly  lead  to  an  inference  that  he 
might  have  committed  some  crime  of  violence  charged  against 
him,  while  it  would  have  no  bearing  upon  the  question  of 
whether  he  had  been  guilty  of  a  larceny  or  forgery.  Hence  it 
is  that  proof  of  character,  where  it  is  allowed,  should  be,  and 
is  generally,  confined  to  those  particular  traits  which  have 
some  logical  connection  with  the  nature  of  the  offense 
charged.^  ^ 

It  is  needless  to  dwell  on  the  fact  that  the  character  proved 
must  be  character  prior  to  the  time  of  the  commission  of  the 
offense.  This  is  implied  from  the  very  purpose  for  which  the 
evidence  is  admitted. ^^ 


CHARACTER   AS   A   FACT   IN   ISSUE. 

119.  Where  the  nature  of  the  case  is  such  that  character  be- 
comes one  of  the  principal  facts  in  issue,  evidence  to 
prove  it  is  admissible. 

This  is  not  a  real  exception  to  the  rule  which  excludes  char- 
acter evidence.  It  is  merely  an  application  of  the  ordinary 
rule  as  to  the  proof  of  facts  in  issue.  To  shut  out  evidence 
of  character  under  such  circumstances  would  be  to  say  to  the 
party,  "We  will  not  permit  you  to  prove  your  case."  Instances 
of  this  sort  are  most  frequently  met  with  in  actions  for  libel 

Long  V.  State,  11  Fla.  295.  This  statement  of  the  doctrine  Is  also 
found  in  4  Starkie,  Ev.  (2d  Am.  Ed.)  365.  The  language  of  the  court's 
charge  in  People  v.  Mead,  50  Mich.  228,  15  N.  W.  95,  approved  by  the 
court,  on  appeal,  if  given  a  natural  construction,  is  in  line  vrith  the 
doctrine  which  has  been  generally  disapproved;  yet,  in  approving  the 
charge,  the  appellate  court  makes  the  statement  (page  23.S  of  50  Mich., 
page  95  of  15  N.  W.)  "that  an  accused  party,  who  ia  of  good  reputa- 
tion, is  entitled  to  the  benefit  of  it  in  all  cases." 

16  Griffin  v.  State,  14  Ohio  St.  55,  C3 ;  Drew  v.  State,  124  Ind.  9, 
17,  23  N.  E,  1098 ;  State  v.  Curran,  51  Iowa,  112,  117,  49  N.  W.  1006 ; 
People  V.  Fair,  43  Cal.  137,  148 ;  State  v.  King,  78  Mo.  555. 

16  Shewalter  v.  Bergman,  123  Ind.  155,  23  N.  E.  686. 


200  CHAKACTER.  (Cll.  9 

and  slander.  In  these  cases  the  wrong  complained  of  is  usu- 
ally an  injury  to  reputation  by  reason  of  words  spoken  or  writ- 
ten by  defendant  which  it  is  alleged  falsely  impute  to  the  plain- 
tiff some  criminal  act.  A  plaintiff,  when  he  comes  into  court 
with  a  suit  for  libel,  ordinarily  bases  his  claim  for  damages  on 
these  facts :  (1)  That  the  defendant  made  the  libelous  state- 
ment ;  (2)  that  it  is  false ;  (3)  that  he  has  been  damaged  there- 
by. If  the  defendant  justify  the  utterance  of  the  alleged  libel- 
ous words  by  alleging  the  truth  of  the  facts  stated, — i.  e., 
that  the  plaintiff  in  fact  did  commit  the  criminal  act, — evidence 
upon  the  point  is  necessarily  competent.  Its  effect  is  to  prove 
him  of  bad  character,  but  this  is  immaterial,  as  it  is  proof  of 
an  issue  in  the  case.  No  difficulty  is  presented ;  it  is  not  an 
exception  to  the  rule  which  excludes  proof  of  character,  nor 
is  it  an  instance  of  the  kind  above  referred  to  where  character 
becomes  a  fact  in  issue.  It  is  the  commission  of  a  particular 
act  which  is  the  fact  in  issue,  and  not  character,  though  proof 
as  to  the  commission  of  the  act  incidentally  reaches  to  the  fact 
of  character.  ^^ 

Let  us  assume  now  that  the  first  fact — the  making  of  the 
alleged    libelous    statement — is    sufficiently   proved,    and   that 


IT  Proctor  V.  Honghtaling,  37  Mich.  41.  See  II<isley  v.  Brooks,  20 
111.  115,  71  Am.  Dec.  252.  where  it  was  held  in  an  action  for  a  slander 
imputing  iinchastity  to  plaintiff,  her  character  as  a  quarrelsome  per- 
son could  not  be  shown  in  mitigation.  An  analogous  case  is  present- 
ed in  Johnson  v.  People,  55  N.  Y.  512.  The  indictment  was  for  the 
crime  of  grand  larceny  after  a  former  conviction  for  the  same  offense ; 
the  statute  prescribing  a  greater  penalty  for  a  second  offense.  The 
defendant  objected  to  proof  of  the  former  conviction,  on  the  ground 
that  it  tended  to  establish  bad  character  by  proof  of  specific  acts,  and 
also  that  the  question  of  character  could  not  be  gone  into  unless  the 
prisoner  first  introduced  evidence  of  good  character.  It  is  manifest 
that  the  evidence  was  entirely  propei%  as  the  commission  of  the  pre- 
vious offense  and  conviction  therefor  were  directly  in  issue  under 
the  indictment  and  pica ;  and  the  court  rightly  said  (page  51i  of  55 
N.  Y.) :  "The  objection  that  the  evidence  may  affect  the  prisoners 
character  has  no  force  when  such  evidence  relates  to  the  issue  to  be 
tried.  Such  evidence  may  bo  prrjndicinl  to  a  prisoner  as  to  the  sec- 
ond offense,  and  a  case  might  occur  of  a  conviction  upon  too  slight 
evidenr-o,  tlir<mgh  the  influence  which  a  i)revious  conviction  of  a  sim- 
il-ir  o.Ti'iisc  might  exert  upon  the  minds  of  the  jury;  but  there  is  uo 
h"oA\  i(roiiuiiii«tion  that  such  a  result  will  ever  be  produced." 


§  119)  CHARACTER   AS    A    FACT   IN    ISSUE.  201 

the  defendant  makes  no  claim  of  the  truth  of  such  statement ; 
there  still  remains  to  be  tried  the  third  fact,  to  wit,  damage  to 
the  plaintiff.  The  ground  for  damages  is  that  plaintiff,  being 
of  good  character,  enjoyed  a  good  reputation,  and  that  defend- 
ant, by  his  libelous  statement,  has  detracted  from  that  reputa- 
tion. If  the  defendant  denies  that  the  plaintiff  has  been  dam- 
aged, it  involves  a  denial  of  the  facts  upon  which  plaintiff 
founds  his  claim.  One  of  these  facts  is  that  the  plaintiff  is  of 
good  character.  Character  is  thus  put  in  issue  as  a  fact  in 
the  case  bearing  upon  the  question  of  damage,  and  evidence  to 
prove  it  is  admissible.^^  As  to  the  method  of  proof  and  the 
kind  of  evidence  allowed,  this  is  a  distinct  and  different  ques- 
tion, which  will  be  noticed  later. 

With  respect  to  the  admission  of  this  kind  of  evidence,  it 
would  seem  that  it  is  unobjectionable  on  principle.  Where  a 
plaintiff  seeks  damages  for  an  injury  to  his  reputation,  or  brings 
an  action  in  which  his  recovery  is  in  a  measure  dependent  on 
his  good  character,  he  offers  his  character  for  the  inspection  of 
the  court.  He  makes  it  an  issue  in  the  case,  and  he  cannot 
complain  if  the  defendant  takes  up  the  issue,  and  proceeds 
with  evidence  to  show  that  it  is  not  such  a  character  as  will 
help  him  in  the  recovery  which  he  seeks. ^^ 

18  Paddock  v.  SalisbiUT.  2  Cow.  (N.  Y.)  811 :  Root  v.  King.  7  Cow. 
(N.  Y.)  61.3.  63.5 :  Parkburst  v.  Ketcbum,  6  Alleu  (Mass.)  406,  S3  Am. 
Dee.  639 ;  Scott  v.  Sampson,  8  Q.  B.  Div.  491,  .503.  But  tbe  cbaracter 
of  tbe  defendant  is  in  no  way  in  issue,  and  defendant  cannot  give  evi- 
dence to  sbow  his  own  bad  cbaracter  in  mitigation  of  damages,  as 
bearing  on  tbe  question  of  tbe  impression  bis  words  would  be  like- 
ly to  make.     Hastings  v.  Stetson,  130  Mass.  76. 

19  Scott  V.  Sampson  (1882)  8  Q.  B.  Div.  491 :  A.  against  X.  for  libel. 
The  question  is  whether  evidence  relating  to  the  bad  cbaracter  of 
tbe  plaintifE  is  admissible.  Cave,  J.,  says:  "He  complains  of  an  in- 
jury to  his  reputation,  and  seeks  to  recover  damages  for  that  injury ; 
and  it  seems  most  material  that  tbe  jury  who  have  to  award  those 
damages  should  know,  if  the  fact  is  so,  that  he  is  a  man  of  no  repu- 
tation. On  principle,  therefore,  it  would  seem  that  general  evidence 
of  reputation  should  be  admitted :  and.  on  turning  to  the  authorities 
previously  cited,  it  will  be  found  that  it  has  been  admitted  in  a  great 
majority  of  those  cases,  and  that  its  admission  has  been  approved  by 
a  ereat  majority  of  the  judges  who  have  expre<^sed  an  opinion  on  the 
subje<»t."  Batbrick  v.  Tribune  Co.,  .30  Mich.  629,  640,  16  N.  W.  172,  45 
Am.  Rep.  63. 


202  CHARACTER.  (Ch,  9 

The  character  of  a  party  is  sometimes  brought  in  issue  in 
actions  of  contract.  In  an  action  for  breach  of  promise  of  mar- 
riage the  defendant  may  justify  the  breach  upon  the  ground 
that  he  discovered  the  plaintiff  to  be  of  unchaste  character, 
and  therefore  he  refused  to  marry  her.  Where  bad  char- 
acter is  rehed  on  as  a  complete  defense,  and  is  so  pleaded,  it 
becomes  one  of  the  main  facts  in  issue.  As  such,  evidence  must 
be  allowed  to  show  it.-° 

The  question  has  arisen  sometimes  whether  a  man's  char- 
acter is  drawn  in  issue  in  a  civil  action,  where  allegations  of 
fraud  are  made.  It  was  held  in  some  of  the  earlier  cases  that, 
even  though  the  charge  was  of  constructive  fraud,  character 
was  put  in  issue.^^  But  the  better  opinion  is  that  evidence  of 
character  is  not  admissible  in  this  class  of  cases.^^  Attempts 
have  been  made  in  certain  civil  cases,  where  better  evidence 
cannot  be  obtained,  to  get  in  evidence  as  to  character.  The 
courts  have,  however,  generally  held  that  this  is  no  ground  for 
its  admission.^^ 

2  0  Burnett  v.  Simpkins,  24  111.  264.  See,  to  the  effect  that  char- 
acter is  not  put  in  issue  where  the  defendant  relies  on  particular  acts 
of  uuchastity  as  evidence  in  mitigation  of  damages,  Leckey  v.  Bloser, 
24  Pa.  401,  407. 

21  Ruan  V.  Perry,  3  Caines  (N.  Y.)  120,  but  this  case  was  overruled 
later  by  Gough  v.  St.  John,  16  Wend.  (N.  Y.)  046. 

22  1  Greenl.  Ev.  §  55;  American  Fire  Ins.  Co.  v.  Hazen,  110  Pa.  530, 
537,  1  Atl.  605 ;  Givens  v.  Bradley,  3  Bibb.  (Ky.)  192,  6  Am.  Dec.  646 ; 
Powers  V  Armstrong.  62  Ark.  267.  35  S.  W.  228. 

23  In  Chase  v.  Railroad  Co.,  77  Me.  62,  52  Am.  Rep.  744,  plaintiff 
sought  to  recover  for  death  of  X.,  and,  in  the  absence  of  any  testi- 
mony as  to  the  accident,  no  one  having  seen  it,  offered  evidence  of 
the  general  character  of  X.  for  carefulness.  The  testimony  was  ad- 
mitted, but  on  appeal  this  was  held  erroneous;  and  it  is  laid  down 
in  the  opinion  of  the  court  (page  65)  that  "it  is  not  a  ground  for  the 
admission  of  this  evidence  that  the  plaintiff  can  produce  no  other. 
It  is  neither  of  primary  nor  secondary  importance;  it  is  not  evidence 
at  all."  In  support  of  the  same  principle  are  McDonald  v.  Inhabi- 
tants of  Savoy,  110  Mass.  49;  Bryant  v.  Railroad  Co.,  56  Vt.  710; 
Morris  v.  Town  of  East  Haven,  41  Conn.  2.52 ;  Hays  v.  INIillar,  77  Pa. 
2.38,  18  Am.  Rep.  445 ;  Southern  Kansas  R.  Co.  v.  Robbins,  43  Kan.  145, 
23  Pac.  113.  In  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Clark,  108  111.  113, 
where  there  was  no  one  present  at  the  time  of  the  accident  which 
caused  death,  evidence  was  admitted  that  the  deceased  was  habitually 
prudent,  cautious,  and  temperate,  expressly  upon  the  gi-ound  of  im- 


§  120)  CHAEACTEK   AS   AN    EVIDENTIAKY    FACT.  203 

CHARACTER    AS    AN    EVIDENTIARY   FACT. 

120.  In  certain  cases,  where  a  mental  state  or  condition  is  a 
material  fact  in  issue,  and  where  character  has  a  pe- 
culiarly convincing  quality  as  an  evidentiary  fact, 
character  evidence  is  held  admissible. 

This  class  of  cases  presents  a  real  exception  to  the  general 
rule  against  character  evidence,  and  it  includes  a  variety  of 
cases,  both  civil  and  criminal.  The  common  element  in  all  the 
cases  is  that  some  mental  condition  is  involved  in  the  issues, 
which  is  difficult  of  direct  proof,  and  on  which  character  will 
shed  a  strong  light.  Take  the  case  of  a  charge  of  rape  as  an 
illustration.  One  of  the  elements  in  the  charge  is  the  lack  of 
consent  on  the  part  of  the  complainant.  Its  proof,  so  far  as 
direct  testimony  is  concerned,  is  difficult,  being  ordinarily  con- 
fined to  testimony  of  the  accused  on  the  one  hand,  and  the 
complainant  on  the  other.  If  it  can  be  shown  that  the  char- 
acter of  the  complainant  for  chastity  is  bad,  the  inference  is 
a  strong  one  that  the  act  charged  was  with  her  consent,  as  it 
is  in  line  with  inclinations  which,  from  her  character  as  prov- 
ed, she  may  be  assumed  to  have  had.  In  a  case  like  this  the 
courts  admit  character  evidence.^* 

In  other  cases,  too,  character  may  be  drawn  into  issue  as  an 
evidentiary  fact.  Upon  an  indictment  for  adultery,  the  prose- 
cution, after  showing  defendant's  presence  with  a  woman  un- 

possibility  of  other  proof.  It  is  said  (page  117  of  lOS  111.) :  "Had 
there  been  witnesses  who  saw  the  infliction  of  the  injury,  the  juiy 
could  then  have  determined  from  such  evidence  whether  he  was  care- 
ful or  negligent,  and  in  such  a  case  this  evidence  would  not  be  ad- 
missible. When  there  are  no  witnesses  to  describe  such  an  occur- 
rence, the  defendant  would  surely  have  the  right  to  prove  the  person 
was  habitually  rash,  imprudent,  and  intemperate  to  repel  the  pre- 
sumption that  he  was  in  the  exercise  of  proper  care  at  the  time  he 
received  the  injury." 

2  4  Com.  V.  Kendall,  113  INIass.  210.  18  Am.  Rep.  469;  State  v.  Reed. 
39  Vt.  417,  94  Am.  Dec.  337.  In  Mitchell  v.  Work,  13  R.  I.  645,  it  was 
held  that  evidence  of  unchaste  character,  both  by  general  reputation 
and  by  specific  acts,  was  admissible  upon  the  question  of  damages. 
In  these  cases  it  is  character  in  respect  to  chastity  which  may  be 
proved,  and  not  general  character.     State  v.  Morse,  67  Me.  428. 


204  CHARACTER.  (Ch    9 

der  suspicious  circumstances,  may,  for  the  purpose  of  leading 
to  the  inference  that  adultery  took  place,  show  that  the  woman 
is  a  prostitute ;  and,  to  rebut  the  inference  that  adultery  took 
place,  the  defendant  may  show  that  the  woman's  character 
for  chastity  is  good.^^  It  has  also  been  held  that  the  action 
for  malicious  prosecution  presents  a  proper  field  for  character 
evidence  upon  the  question  of  lack  of  reasonable  and  probable 
cause,  the  inference  being  from  the  fact  that  plaintiff's  char- 
acter was  bad,  that  the  defendant  acted  from  reasonable  mo~ 
tives.^*^ 


CHARACTER    OF    ^'^ITNESS    FOR    VERACITY. 

121.    The  cliaracter  of  a  w^itness  for  veracity  may  be  slio'wni  for 
tlie  purpose  of  affecting  the  weight  of  his  testimony. 

Character  sometimes  becomes  an  issue  in  a  case  in  a  purely 
collateral  way,  and  not  as  evidentiary  of  any  of  the  main  facts. 
This  is  the  case  where  it  is  sought  to  impeach  the  testimony 
of  a  witness,  by  showing  his  character  for  veracity  to  be  bad. 
The  testimony  having  been  given,  and  the  jury  asked  to  be- 
lieve the  witness,  it  becomes  a  question  as  to  how  much  weight 
shall  be  given  to  his  statements.  On  this  point  his  general 
character  for  veracity  becomes  material,  and  it  is  accordingly 
held  that  evidence  may  be  given  to  show  that  it  is  bad ;  ^'^ 
and,  if  such  testimony  is  given,  counter  evidence  may  be  given 
by  the  party  producing  the  witness  in  support  of  his  character. 
This  is  not  a  real  exception  to  the  general  rule  excluding  char- 
acter evidence,  as  it  is  here  introduced  not  as  in  any  way  bear- 
ing upon  the  facts  in  issue,  or  showing  the  probability  of  their 

2  5  Com.  V.  Gray,  129  Mass.  474,  37  Am.  Rep.  378.  See,  also,  Oi-auge 
V.  State  (Tex.  Cr.  App.)  83  S.  W.  385. 

2  6  :Martin  v.  Hardesty,  27  Ala.  458,  62  Am.  Dec.  773.  But  in  an 
action  for  assault  and  battery  evidence  will  not  be  allowed  that  the 
plaintiff  Is  of  bad  reimte,  and  was  acconipaiiiod  by  his  paramour  when 
he  entered  defendant's  house,  in  ejecting  him  from  which  the  assault 
was  coinuiitted.     Bruce  v.  Priest  o  Allen  (Mass.)  TOD. 

2T  Knode  v.  Williamson,  17  Wall.  HSO,  21  T..  Ed.  (>70:  C■o^Yan  v.  Kin- 
ney, 33  Ohio  St.  422.  429;  Boon  v.  Weathered's  Adii/r,  23  Tex.  G7o : 
People  v.  Methvin,  53  Cal.  68. 


§  122)         CHARACTER   WHEN    MATERIAL — HOW    PROVED.  205 

existence,  but  only  for  a  collateral  purpose,  connected  with  the 
weight  of  the  testimony. 

In  cases  of  impeachment  of  witnesses,  it  is  only  a  particular 
phase  of  character  which  is  in  issue,  namely,  veracity.  The 
inquiry,  therefore,  cannot  be  extended  to  general  character,^ ^ 
though  there  are  a  few  cases  in  which  it  has  been  allowed.^® 
And  in  a  case  for  rape  it  has  been  held  that  character  of  the 
complainant  for  unchastity  may  be  proved  to  affect  her  credi- 
bility.3° 


CHARACTER    WHEN    MATERIAIr-HOW    PROVED. 

122.  Where  diaracter  is  lield  to  be  a  material  fact  in  i»sne, 
either  as  a  principal  fact,  an  evidentiary  fact,  or  a 
collateral  fact,  proof  in  respect  to  it  is  generally  con- 
fined to  testimony  of  general  reputation. 

Character  has  sometimes  been  defined  as  meaning,  in  the 
legal  sense,  "the  general  reputation  of  a  person."  ^^  It  is  be- 
lieved that  the  m.ore  correct  view  is  that  character,  in  the  legal 
sense,  means  the  same  as  it  does  in  the  ordinary  sense,  and  that, 
where  character  is  in  issue  in  any  one  of  the  ways  above  stated, 
it  is  real  character  or  nature,  as  distinguished  from  reputed 
character  or  "general  reputation,"  which  is  the  subject  of 
inquiry.     This  view  is  more  in  accord  with  the  principle  of 

28  U.  S.  V.  Vansickle,  2  McLean.  219.  Fed.  Cas.  No.  16,609;  Presi- 
dent, etc.,  of  Quiusisamond  Bank  v.  Ilobbs,  11  Gray  (Mass.)  250 ; 
Sargent  v.  Wilson,  59  N.  H.  396 ;  State  v.  Morse,  67  Me.  428 ;  French 
V.  Sale,  63  Miss.  386,  393 ;  Craig  v.  State,  5  Ohio  St.  605 ;  Warner  v. 
Lockerby,  31  Minn.  421,  18  N.  W.  145,  821. 

2  9  State  V.  Boswell,  2  Dev.  (N.  C.)  209;  Smithwick  v.  Evans,  24 
Ga.  461.  In  some  states  the  decisions  under  special  statutory  pro- 
vision hold  that  general  moral  character  may  be  given  in  evidence  to 
affect  credibility.  Walton  v.  State,  88  Ind.  9,  19 ;  State  v.  Egan,  59 
Iowa,  636,  13  N.  W.  730.  See,  also,  People  v.  Markham,  64  Cal.  157, 
163,  30  Pac.  620,  49  Am.  Rep.  700. 

30  Camp  V.  State,  3  Ga.  417,  420. 

31  Steph.  Ev.  art.  56.  Greeuleaf  speaks  of  it  as  "general  character." 
€hamberlayne,  in  his  notes  to  Best  on  Evidence  (8th  Ed.  p.  256)  de- 
fines it  more  accurately,  as  follows :  "By  character  in  this  connection 
is  meant  such  portion  of  a  man's  actual  nature  and  disposition  as  is 
relevant  to  the  subject  under  investigation." 


206  CHAEACTER.  (Ch,  9 

the  cases,  and  explains  more  satisfactorily  many  cases  which 
would  otherwise  seem  anomalies. 

By  a  singular  rule,  however,  the  evidence  by  which  charac- 
ter is  allowed  to  be  proved  is  confined  to  testimony  of  the  gen- 
eral reputation  of  the  person,  whose  character  is  in  question,  in 
the  community  where  he  is  known.  General  reputation  thus 
becomes  the  basis  of  an  inference  as  to  the  real  character  of 
the  person. ^^  A  good  reputation  presumes  a  good  character 
and  a  bad  reputation  presumes  a  bad  character.  But  since 
character  is  what  a  man  is,^^  and  reputation  is  what  he  is  sup- 
posed to  be,  it  may  happen  that  his  reputation  will  be  different 
from  his  character.  Though  in  truth  a  man  of  bad  character, 
he  may  be  a  man  of  good  reputation.  The  law,  as  a  general 
rule,  seems  to  look  no  further  than  reputation  for  its  proof  of 
character,  and  to  assume  that  reputation  is  a  criterion  upon 
which  so  much  reliance  may  be  placed  that  further  proof  is  un- 
necessary. A  witness  may  go  on  the  stand  with  an  intimate 
personal  knowledge  of  the  character  of  the  person  under  dis- 
cussion, as  well  as  a  knowledge  of  what  is  the  general  reputa- 
tion of  such  person.  He  can  state  only  the  general  reputation, 
and,  though  his  direct  testimony  as  to  character  might  be  much 
more  valuable,  the  rigorous  rule  of  law  excludes  it.^*  As  the 
authorities  hereafter  referred  to  will  show,  whether  it  be  evi- 
dence of  bad  character  which  the  nature  of  the  case  calls  for, 
or  of  good  character,  and  whether  it  be  given  in  the  first  in- 
stance, or  to  rebut  previous  evidence  given  by  the  opposite 
party,  the  rule  is  the  same  with  regard  to  its  being  confined  to 

3  2  The  question  is  very  fully  discussed  in  Reg.  v.  Rowton  (186.")) 
Leigh  &  C.  520;  and,  though  the  court  \Yas  divided,  a  majority  held 
that  the  law  was  too  well  settled,  confining  evidence  of  character  to 
testimony  concerning  general  reputation,  to  admit  a  change.  Holsey 
V.  State,  24  Tex.  App.  35,  5  S.  W.  523. 

33  According  to  the  Century  Dictionary  character  is  "the  combi- 
nation of  properties,  qualities,  or  peculiarities  which  distinguishes 
one  person  or  thing,  or  oue  group  of  persons  or  things,  from  others ; 
specifically  the  sum  of  inherited  and  acquired  ethical  traits  which 
give  to  a  person  his  moral  individuality." 

34  Swift,  Ev.  143 :  "A  witness  called  to  impeach  or  support  the  gen- 
eral character  of  another  is  not  to  spealv  of  his  private  opinion  or  of 
particular  facts  in  his  own  knowledge,  but  he  must  speak  of  the  com- 
mon reputation  among  his  neighbors  and'  acquaintances." 


§  123)        CHARACTER    WHEN    MATERIAL — HOW    PROVED.  207 

general  reputation.  Nor  is  there  any  difference  in  the  rule  by 
reason  of  the  purpose  for  which  character  is  sought  to  be 
proved,  whether  it  be  in  a  criminal  case,  or  in  a  civil,  and 
whether  to  mitigate  damages  or  to  impeach  a  witness. 

Let  it  be  supposed  that  the  character  of  X.  is  in  issue ;  from 
a  logical  standpoint  there  are  several  ways  in  which  it  may 
be  proved.  In  the  first  place,  there  is  testimony  of  X.'s  gen- 
eral reputation,  which  is  undoubtedly  a  strong  fact.  Secondly, 
there  is  the  direct  testimony  of  persons  who  have  known  X.  in- 
timately, and  are  competent  to  speak  as  to  his  character. 
Thirdly,  there  is  the  evidence  of  particular  acts  or  conduct 
which  would  undoubtedly  tend  to  show  what  manner  of  man  he 
is.    We  take  these  three  kinds  of  evidence  up  in  inverse  order. 


SAME— PARTICULAR   ACTS   AS   EVIDENCE    OF   CHAR- 
ACTER. 

123.    Particular  acts  are  inadmissible  to  slioxr  either  good  or 
bad  character. 

The  reason  for  this  rule  is  not  difficult  to  find.  It  lies  in 
the  disinclination  of  the  court  to  mix  up  with  the  issue  before 
it  for  trial  other  issues  as  to  collateral  facts,  which  will  pro- 
long the  trial,  and  confuse  the  jury,  without  being  productive 
of  any  valuable  results  in  the  way  of  proof.  If  the  court  should 
go  into  an  inquiry  as  to  the  commission  of  some  one  particular 
act  on  the  question  of  character,  it  must,  in  justice  to  both 
sides,  extend  the  inquiry  to  as  many  other  acts  as  either  side 
may  wish  to  prove.  In  fact,  a  single  act  would  be  of  little 
weight  in  determining  character,  compared  to  many  acts  ex- 
tending over  a  considerable  part  of  a  man's  life.  Courts  can- 
not go  into  so  minute  an  inquiry,  and  therefore  reject  this 
method  of  proof  altogether  as  the  safer  way.^^     It  is  assumed 

3  5  Scott  V.  Sampson,  8  Q.  B.  Div.  491,  ,50.5;  Holmes  v.  Jones,  147 
N.  T.  59,  68,  41  N.  E.  409,  49  Am.  St.  Rep.  646 ;  Miller  v.  Curtis,  158 
Mass.  127,  131,  32  N.  E.  1039,  35  Am.  St.  Kep.  469 ;  Proctor  v.  Hougli- 
taling,  37  Mich.  41.  In  Gore  t.  Curtis,  81  Me.  403,  17  Atl.  314,  10 
Am.  St  Rep.  265,  which  was  an  action  for  indecent  assault, — the 
court  say  (page  405  of  81  Me.,  page  315,  of  17  Atl.) :  "Persons  seeking 
damages  in  actions  of  this  sort  must  be  prepared  to  defend  their 


208  CHARACTER.  (Ch.  9 

that  a  man's  course  of  conduct,  as  observed  by  those  among 
whom  he  dwells,  will  give  him  a  reputation  which  will  fairly 
represent  his  real  character,  and  that,  in  the  face  of  the  utter 
impracticability  of  the  court's  attempting  to  cover  the  ground 
adequately  if  it  should  allow  proof  of  this  sort,  general  repu- 
tation will  furnish  the  safest  criterion  to  rely  upon. 

If  particular  acts  are  excluded  as  proof  of  character,  it  fol- 
lows that  no  evidence  will  be  admissible  to  prove  the  particular 
acts,  and  that  the  attempt  to  reach  the  question  of  character 
through  such  pi  oof  as  general  reputation  of  the  party  whose 
character  is  in  question  for  having  committed  particular  acts, 
which  acts,  if  proved,  might  cast  light  on  the  question,  is 
doubly  objectionable.^^  A  misconception  of  the  idea  of  gen- 
eral reputation  as  evidence  of  character  is,  doubtless,  respon- 
sible for  the  cases  where  this  course  has  been  attempted. 

The  language  of  some  of  the  cases  seems  to  indicate  that 
there  are  exceptions  to  the  rule  excluding  particular  acts  as 
proof  of  character.  In  many  cases,  evidence  of  particular  acts 
of  misconduct  has  been  held  admissible,  and  in  these  very  cases 
character  has  been  a  material  fact ;  but  an  analysis  will  show 
that  the  particular  acts  have  been  allowed  to  be  proved,  not 
strictly  for  the  inference  which  may  result  as  to  the  question  of 
character,  but  for  some  more  direct  inference  as  to  the  issues 
in  the  case.  In  an  action  for  libel,  the  defendant  is  permitted 
to  show  particular  acts  of  misconduct,  provided  they  were 
known  to  him  at  the  time  of  the  publishing  of  the  libel,  and 
are  of  such  a  nature  as  to  afford  reasonable  ground  for  his  be- 
lieving the  libel  to  be  true.  This  is  not  to  prove  character,  but 
to  lead  to  the  direct  inference  that  the  libel  was  not  malicious.^ ^ 

general  character,  but  are  not  required  to  come  ready  to  explain  the 
various  specific  questionable  acts  of  their  lives,  and  to  rebut  false 
accusations,  of  which  they  can  have  no  premonition.  It  would  be  a 
hard  rule  that  would  compel  a  plaintiff  to  defend  every  act  of  his 
life  as  the  price  of  justice."  In  St.  Louis,  etc.,  Ry.  Co.  v.  Stroud,  67 
Ark.  112,  56  S.  W.  870,  the  plaintiff  attempted  to  show  that  the  watch- 
man employed  by  defendant  was  of  a  notoriously  bad  and  dangerous 
character,  and  for  that  puiqiose  offered  in  evidence  particular  acts  of 
shooting  by  the  watchman,  which  was,  in  accordance  with  the  rule 
stated,  held  inadmissible. 

36  Inman  v.  Foster,  8  Wend.  (N.  Y.)  608. 

3T  In  Hatfield  v.  Lasher,  81  N.  Y.  246,  Folger,  J.,  says  (page  248): 


§  123)       CHARACTER   WHEN    MATERIAL — HOW   PROVED.  209 

There  is  another  class  of  cases,  where  particular  acts  have 
been  allowed  to  be  proved ;  and  it  is  questionable  whether  in 
some  of  them  at  least  such  acts  can  affect  the  issues  except 
through  character  as  an  intermediate  evidentiary  fact.  The 
cases  referred  to  are  those  where  rape  and  kindred  violent  acts 
are  involved,  depending  for  their  unlawful  character  upon  the 
consent  of  the  party  against  whom  they  are  committed.  It  is 
held  in  such  cases  that  previous  immoral  acts  by  the  complain- 
ant with  the  accused  may  be  proved.  Here  there  is  perhaps  a 
direct  logical  inference  from  the  fact  that  the  complainant  con- 
sented to  previous  immoral  acts  that  she  consented  to  those 
complained  of.  But  where  the  courts  go  a  step  further  and  ad- 
mit previous  immoral  acts  with  other  persons  than  the  accused 
the  inference  certainly  is  a  forced  one,  unless  the  facts  be  re- 
garded as  proof  of  a  character  or  disposition  from  which  the 
jury  might  infer  that  the  complainant  would  have  been  likely 
to  have  consented  to  the  act  charged  as  a  crime.^^ 

"The  court  was  right  in  charging  that  the  facts  which  the  defendant 
proved  to  mitigate  the  damages  must,  to  have  that  effect,  have  been 
liuown  to  him,  and  believed  by  him,  before  he  uttered  the  slanderous 
words.  How  do  such  facts  operate  to  mitigate  the  damages?  Not  by 
showing  thereby  that  the  reputation  of  the  plaintiff  is  so  bad  as  that 
the  words  spoken  by  the  defendant  cannot  make  it  worse.  *  *  * 
Such  facts  have  effect  by  showing  that  the  defendant  was  not  ma- 
licious in  the  utterance  of  the  disparaging  words."  Contra,  Burt  v. 
Newspaper  Co.,  154  Mass.  238,  245,  28  N.  E.  1,  13  L.  R.  A.  97,  where  it 
is  said:  "The  damages  recovered  are  measured  in  all  cases  by  the 
injury  caused.  Vindictive  or  punitive  damages  are  never  allowed  in 
this  state.  Therefore  any  amount  of  malevolence  on  the  defendant's 
part  in  and  of  itself  would  not  enhance  the  amount  of  the  plaintiffs 
recovery  by  a  penny,  and  reasonable  cause  to  believe  the  charges  or 
absolute  good  will  would  not  cut  it  down."  In  Leckey  v.  Bloser,  24 
Pa.  401,  407,  particular  acts  of  immorality  by  the  plaintiff  with  other 
persons  were  allowed  in  evidence  in  mitigation  of  damages  upon  an 
action  for  breach  of  promise  of  marriage,  and  it  was  expressly  held 
that  it  was  not  a  case  where  character  was  in  question.  Evidence 
of  good  character  was  therefore  excluded. 

3  8  state  V.  Reed,  39  Vt.  417,  94  Am.  Dec.  337;  State  v.  Murray, 
63  N.  C.  31.  In  Pratt  v.  Andrews,  4  N.  Y.  493,  496,  the  court  seem  to 
regard  the  inference  as  a  direct  one,  and  express  doubt  as  to  whether 
proof  of  particular  acts  raises  any  issue  as  to  character,  so  as  to 
Ijermit  the  complainant  to  meet  it  by  proof  of  general  good  character ; 
and  in  Zitzer  v.  Merkel,  24  Pa.  408,  an  action  for  seduction,  it  is  held 
that  under  such  testimony  no  issue  as  to  character  is  raised.    In 

m'kelv.ev.(2d  ED.) — 14 


210  CHARACTER.  (Cll.  9 


OPIXION   INADMISSIBLE. 

124.  Direct  testimony  as  to  character  would  amount  simply 
to  tlie  opinion  of  tlie  'witness  testifying  as  to  the  char- 
acter under  discussion,  and  is  inadmissible. 

It  has  been  mentioned  above  that,  in  the  proof  of  character, 
direct  evidence  will  not  be  allowed.  This  is  laid  down  as  the 
general  rule;  yet  there  are  jurisdictions  in  which,  under  certain 
circumstances  and  in  certain  classes  of  cases,  it  is  permitted  to 
inquire  of  the  witness  directly  as  to  character.  In  cases  where 
the  character  of  a  witness  for  veracity  is  sought  to  be  impeach- 
ed, it  is  held  in  England  and  in  most  of  the  states  that,  after 
inquiry  as  to  general  reputation  for  veracity,  the  impeaching 
witness  may  be  asked  for  his  own  opinion,^^  though  in  other 
jurisdictions  the  inquiry  is  confined  strictly  to  general  reputa- 
tion.*°  In  a  case  for  rape  it  has  been  held  that  direct  evidence 
as  to  immoral  character  was  admissible.*^ 

Rhode  Island  it  is  held  that  specilSc  acts  of  immorality  with  other 
men  cannot  be  shown  in  criminal  cases,  though  they  can  in  civil. 
State  V.  Fitzsimou,  18  R.  I.  236,  27  Atl.  446,  49  Am.  St.  Rep.  766. 

3?  In  Chase's  note  to  Stephen's  Digest  of  Evidence  (i^age  233)  the 
rule  is  stated  as  follows:  "It  is  a  well-settled  rule  in  this  country 
that  a  witness  of  the  adverse  party  may  be  impeached  by  evidence 
from  other  persons  of  his  bad  general  reputation  in  his  own  com- 
munity. The  impeaching  witnesses  must  come  from  this  community, 
and,  in  examining  any  one  of  them,  the  form  of  inquiry  usually  is 
to  ask  (1)  whether  he  knows  the  general  reputation  in  that  community 
of  the  witness  in  question ;  then,  if  he  assents,  (2)  what  that  reputa- 
tion is;  and  (3)  whether  from  such  knowledge  he  would  believe  such 
witness  on  his  oath."  That  inquiry  may  extend  to  the  question  of 
belief  of  witnesses  under  oath  after  examination  as  to  knowledge  of 
general  reputation,  see  Bogle's  Ex'rs  v.  Kreitzer,  46  Pa.  465 ;  Ford  v. 
Ford,  7  Humph.  (Tenn.)  92,  101;  Hamilton  v.  People,  29  Mich.  173, 
186.  But  evidence  as  to  general  reputation  must  first  be  given. 
Sloan  V.  Edwards,  61  Md.  89,  102 ;  Lyman  v.  City  of  Philadelphia.  56 

40  Inhabitants  of  Phillips  v.  Inhabitants  of  Kingfield  19  Me.  375, 
36  Am.  Dec.  760.     See  Walton  v.  State.  88  lud.  9,  19. 

41  Woods  V.  People,  55  N.  Y.  51.5,  14  Am.  Rep.  309.  In  this  case  evi- 
dence that  the  prosecutrix  was  in  the  habit  of  receiving  men  at  her 
house  for  promiscuous  intercourse  was  held  admissible.  This  is  going 
outside  of  the  rule  which  requires  character  to  be  proved  by  general 
reputation  only.     See,  also,  Carter  v.  Com.,  2  Va.  Cas.  109. 


125)  GENERAL   REPUTATION.  211 


GENERAL  REPUTATION— PROVED   BY  DIRECT   TESTI- 
MONY. 

125.  General  reputation  as  an  evidentiary  fact  can  only  be 
proved  by  direct  testimony  of  witnesses  having  knowl- 
edge of  the  subject.  Particular  reports  and  rumors 
are  inadmissible. 

While  general  reputation  consists  of  the  unanimity  of  in- 
dividual belief,  opinion,  and  speech  concerning  the  character 
in  question,  and  finds  expression  in  particular  rumors  and  re- 
ports, such  particular  rumors  and  reports  are  incompetent  to 
prove  general  reputation.  General  reputation  is  a  fact  which 
must  be  directly  testified  to.*^    jt  jg  a  fact  which  may  be  used 

Pa.  488,  502.  It  has  been  held  that,  in  the  case  of  a  witness  called 
to  rebut  impeaching  testimony,  testimony  by  him  to  the  effect  that 
he  never  heard  the  witness'  character  for  veracity  questioned  or  spo- 
ken of,  and  that  he  knew  the  associates  and  neighbors  of  the  witness, 
is  virtually  evidence  of  good  reputation,  and  suflBcient  to  permit  him 
to  testify  that  he  would  believe  him  under  oath.  People  v.  Davis, 
21  Wend.  (N.  Y.)  309,  315;  Lenox  v.  Fuller,  39  Mich.  268,  272.  The 
question  as  to  whether  witness  would  believe  the  person  whose  testi- 
mony is  being  impeached  under  oath  seems  to  be  allowed,  not  so  much 
for  the  sake  of  getting  at  an  opinion,  as  for  the  sake  of  emphasizing 
and  giving  point  to  the  general  testimony  of  the  impeaching  witness, 
as  testimony  relating  to  character  for  veracity,  and  not  general  moral 
character.  In  Hamilton  v.  People,  29  Mich.  173,  185,  there  is  a  full 
discussion  of  the  subject.  See,  also.  Knight  v.  House,  29  Md.  IM, 
96  Am.  Dec.  515;  Wilson  v.  State,  3  Wis.  798.  It  is  not,  however, 
held  to  be  essential  to  impeaching  testimony  that  the  question  be 
asked.  People  v.  Tyler,  35  Cal.  553 ;  Wright  v.  Paige,  *  42  N.  Y.  581 ; 
Laclede  Bank  v.  Keeler,  109  111.  385,  389. 

4  2  In  Bush  V.  Prosser,  11  N.  Y.  347,  Selden,  J.  (page  361),  says: 
"It  has  long  been  settled  in  this  state  and  in  Massachusetts,  as  well 
as  most  of  the  other  states,  that,  although  evidence  is  admissible  to 
prove  the  general  character  of  the  plaintiff  to  be  bad,  yet  that  no 
mere  reports  or  rumors,  not  amounting  to  proof  of  general  character, 
nor  information  obtained  by  the  defendant  from  others  as  to  the  truth 
of  the  charge,  unless  accompanied  by  proof  that  such  information  is 
true,  can  be  received  for  the  purpose  of  rebutting  the  presumption 
of  malice."  The  word  "character"  seems  to  be  used  here  as  meaning 
reputation.  Scott  v.  Sampson,  8  Q.  B.  Div.  491,  503 ;  Com.  v.  Lawler, 
12  Allen  (Mass.)  585 ;  Knight  v.  Foster,  39  N.  H.  576 ;  White  v.  Com., 
96  Ky.  180,  28  S.  W.  340. 


212  CHARACTER.  (Ch.  9 

as  evidence  of  character,  or  perhaps  of  some  other  thing,*^ 
and  one  must  discriminate  between  its  uses.  We  are  concerned 
with  it  here  only  as  evidence  of  character,  and  hence  may  elim- 
inate other  cases. 


REPITTATION  AS  TO  ACT  CHARGED  INADMISSIBLE. 

126.  Proof  of  the  general  reputation  of  a  party  for  having 
committed  the  particular  act  charged  in  an  alleged 
libelous  statement  is  not  such  proof  of  general  repu- 
tation as  is  admissible  on  the  question  of  character. 

If  the  Hbel  charges  the  plaintiff  with  having  committed  a 
theft,  proof  that  the  plaintiff  is  generally  reputed  to  have  com- 
mitted such  theft  is  inadmissible.**  Reputation  for  a  particular 
act  is  not  general  reputation,  nor  would  the  evidence  be  ad- 
missible on  the  question  of  the  truth  of  the  charge.*'  But, 
if  proof  should  be  offered  that  the  plaintiff  was  generally  re- 
puted to  be  a  thief, — i.  e.,  that  his  general  reputation  in  the  mat- 
ter of  integrity  was  that  of  a  thief, — it  would  be  legitimate 
proof  of  general  reputation.  It  is  true  that  it  only  goes  to  one 
phase  of  his  reputation;    but,  if  his  reputation  is  proved  in 

48  In  Norfolk  &  W.  R.  Co.  v.  Hoover,  79  Md.  253,  29  Atl.  994,  25  L. 
R.  A.  710,  47  Am.  St.  Rep.  392,  the  general  reputation  for  intemper- 
ance of  an  employe  of  the  railroad  company  was  admitted  as  leading 
directly  to  the  inference  of  negligence  in  employing  him.  This  is  an 
example  of  the  fact  of  general  reputation  being  evidential  of  some- 
thing other  than  character. 

4  4  Ma  honey  v.  Belford,  132  Mass.  393;  Kennedy  v.  Gifford,  19 
Wend.  (N.  Y.)  296 ;  Pease  v.  Shippen,  80  Pa.  513,  21  Am.  Rep.  116 ; 
Young  v.  Bennett,  5  HI.  43.  In  Scott  v.  Sampson,  8  Q.  B.  Div.  491, 
Cave,  J.,  in  delivering  the  opinion,  says  (page  504) :  "As  to  the  sec- 
ond head  of  evidence,  or  evidence  of  rumors  and  suspicions  to  the 
same  effect  as  the  defamatory  matter  complained  of.  It  would  seem 
that,  on  principle,  such  evidence  is  not  admissible,  as  only  indirectly 
tending  to  affect  the  plaintiff's  reputation.  If  these  rumors  have,  in 
fact,  affected  the  phiintiff's  reputation,  that  may  be  proved  by  gen- 
eral evidence  of  reputation.  If  they  have  not  affected  it,  they  are 
not  relevant  to  the  issue."  Contra,  Case  v.  Marks,  20  Conn.  248;  Ful- 
ler V.  Dean,  31  Ala.  6.54. 

45Wolcott  V.  Hall.  6  Mass.  514,  4  Am.  Dec.  173;  Matson  v.  Buck, 
5  Cow.  (N.  Y.)  499;  Proctor  v.  Iloughtaling,  37  IMich.  41,  44. 


§  127)       GENERAL   REPUTATION    IN    OWN    COMMUNITY.  213 

that  respect,  that  may  be  sufficient  to  cover  the  trait  of  cliaracter 
which  is  in  issue.*® 


GENERAL  REPUTATION  MUST  BE  THAT  W^HICH  A  PER- 
SON BEARS  IN  HIS   OAVN  COMMUNITY. 

127.  The  general  reputation  allowed  to  be  proved  as  evidence 
of  cliaracter  is  that  which  the  party  bears  in  his  own 
community,  where  he  lives  and  is  personally  known  to 
the  people,  and  is  confined  to  the  time  of  the  act  in 
respect  to  which  character  becomes  material. 

One's  reputation  in  a  place  at  some  distance  from  his  home 
is  not  admissible.  The  law  regards  as  valuable  upon  the  ques- 
tion of  character  only  that  repute  which  a  man  has  gained 
among  those  who  have  had  opportunity  for  personal  observa- 
tion of  his  habits  and  manner  of  life,  and  who  are  therefore 
competent  to  form  an  opinion.*'^  The  consensus  of  such  opin- 
ion becomes  general  reputation.  Since  character  evidence  is 
offered  as  proof  with  respect  to  some  particular  act,  the  time 
of  the  commission  of  the  act  fixes  the  period  to  which  testi- 
mony of  character  must  be  limited.  It  is  his  character  at  that 
particular  time,  and  hence,  as  proof  of  character,  his  reputation 

4  6  Clark  V.  Brown,  116  Mass.  504,  509;  Drown  v.  Allen,  91  Pa.  393. 

47  Com.  V.  O'Brien,  119  Mass.  342,  20  Am.  Rep.  325 ;  I'eople  v.  White, 
14  Wend.  (N.  Y.)  Ill ;  Waddingbani  v.  Hulett,  92  Mo.  52S,  5  S.  W.  27. 
A  man  may  acquire  a  reputation  in  one  place,  and  move  to  another. 
Upon  the  question  as  to  his  veracity  his  reputation  in  the  former 
community  will  be  received  where  he  has  been  but  a  few  weeks  in  the 
new  community.  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Richardson,  66 
Ind.  43,  50,  32  Am.  Rep.  94:  Kelly  v.  State.  61  Ala.  19;  Coates  v. 
Sulau,  46  Ktm.  341,  26  Pac.  720.  But  reputation  at  a  previous  place 
of  residence  five  years  before  trial  is  inadmissible.  State  v.  Potts, 
78  Iowa,  656,  43  N.  W.  534,  5  L.  R.  A.  814.  See  Brown  v.  Perez,  89 
Tex.  282,  34  S.  W.  725,  where,  on  accovmt  of  witness  having  had  no 
fixed  place  of  abode  for  some  time,  evidence  of  his  reputation  at 
his  former  place  of  residence  was  allowed.  An  impeaching  witness 
need  not  come  from  the  same  immediate  neighborhood.  If  he  knows 
the  reputation  of  the  witness  whose  credibility  is  questioned,  it  is  suf- 
ficient. Wallis  V.  White,  58  Wis.  26,  15  N.  W^  767.  A  person  sent 
specially  to  a  community  to  ascertain  the  reputation  of  a  party  can- 
not testify  as  to  general  reputation.  Such  evidence  would  be  hear- 
say.   Douglass  V.  Tousey,  2  Wend.  (N.  Y.)  352,  20  Am.  Dec.  616. 


214  CHARACTER.  (Cb.  9 

at  that  time,  which  is  material.  His  subsequent  reputation  will 
not  be  admitted.*®  In  the  case  of  proof  of  character  for  ve- 
racity, however,  it  is  held  that  evidence  of  reputation  after 
the  witness'  testimony  has  been  taken  by  deposition  is  admissi- 
ble.''» 


IMPEACHING    EVIDENCE   INTRODUCED    FIRST. 

128.  In  all  cases  where  character  becomes  material,  except 
character  of  the  accused  in  criminal  cases,  impeaching 
evidence  must  first  be  introduced  before  evidence  of 
good  character  ivill  be  received. 

It  is  said  that  good  character  will  be  presumed  by  the  court, 
which  is  not  exactly  the  correct  manner  of  stating,  that,  until 
character  is  attacked,  it  will  be  assumed  by  the  court  to  be  that 
of  the  normal  man,  sufficient  to  entitle  his  testimony,  if  he  is 
a  witness,  to  the  weight  which  its  nature  and  the  circumstances 
warrant,  and,  if  he  is  a  plaintiff,  to  entitle  him  to  the  full  bene- 
fit of  the  legal  remedies  which  fit  his  case.  In  criminal  cases, 
where  it  is  the  character  of  the  accused  which  is  in  question, 
we  have  already  seen  that  it  rests  with  the  accused  to  take  the 

4  8  Mapes  V.  Weeks,  4  Wend.  (N.  Y.)  659;  Com.  v.  Abbott,  130  Mass. 
472 ;  State  v.  Jobuson,  Wlnst.  (N.  C.)  151 ;  Wroe  v.  State,  20  Obio  St. 
460.  472 ;  Grabam  v.  State,  29  Tex.  App.  31,  13  S.  W.  1013.  But  see 
Parkburst  v.  Ketcbum,  6  Allen  (Mass.)  406,  83  Am.  Dec.  639,  wbere 
evidence  of  bad  reputation  10  years  before,  and  at  anotber  place,  was 
allowed,  on  tbe  tbeory  tbat  reputation  would  be  presumed  to  con- 
tinue tbe  same.  See,  also,  Jones  v.  State,  104  Ala.  30,  16  Soutb.  135. 
A  period  of  30  years  bas,  bowever,  been  beld  to  be  too  long  to  Justify 
admission  of  evidence  as  to  a  party's  reputation  for  truth  and  verac- 
ity.   Daugberty  v.  Lady  (Tex.  Civ.  App.)  73  S.  W.  837. 

49  In  Dollner  v.  Lintz,  Si  N.  Y.  609,  it  was  beld  tbat  reputation  at 
time  of  trial  could  be  inquired  for,  tbougb  tbe  testimony  of  tbe  dis- 
credited witness  bad  been  taken  by  deposition  18  montbs  before.  It 
is  said  in  tbe  opinion:  "General  reputation  is  not  usually  tbe  growth 
of  a  day  or  a  month,  but  results  in  most  cases  from  a  course  of  life 
or  conduct  for  a  period  of  time.  Proof  that  the  reputation  of  a  wit- 
ness is  now  bad  might  justify  the  jury,  in  the  al)Rence  of  counter- 
vailing evidence,  in  inferring,  witliin  reasonable  limits  as  to  time,  that 
it  was  bad  Ijefore  tbe  day  of  trial."  Ransom  v.  McCurley,  140  111. 
626,  635,  31  N.  E.  119;  Hamilton  v.  People,  29  Mich.  173,  188;  Amidon 
V.  Hosloy,  54  Vt  25. 


§  128)       IMPEACHING    EVIDENCE    INTRODUCED    FIRST.  215 

initiative,  if  he  sees  a  benefit  in  spreading  his  character  before 
the  jury;  and  the  prosecution  is  not  at  Hberty  to  use  it  to  his 
injury,  unless  he  first  tries  to  use  it  to  his  own  benefit.  In 
other  cases  the  rule  is  just  the  opposite.  Evidence  of  good 
character  will  not  be  received  until  impeaching  evidence  has 
been  first  introduced.^" 

And  the  mere  fact  that  there  are  circumstances  shown  in 
evidence  which  tend  to  cast  doubts  upon  the  veracity  of  a  party 
will  not  be  sufficient  to  allow  the  party  to  introduce  evidence  as 
to  his  reputation  for  truth  and  veracity.^^ 

Suits  for  libel,  for  seduction,  for  criminal  conversation,  and 
the  like,  usually  present  the  question.  Whether  the  plaintiff's 
character  be  collaterally  or  mainly  in  issue,  the  rule  is  the  same. 
It  has  been  held  that  where  no  express  disclaimer  is  made  by 
defendant  as  to  any  intention  to  impeach  plaintiff's  character, 
but  the  attitude  of  the  defendant  at  the  trial,  and  the  general 
nature  of  his  case  on  the  pleadings  and  trial,  show  that  he 
questions  plalntifif's  character,  there  plaintiff  may  introduce  evi- 
dence in  support  of  it.' 


52 


50  Pratt  V.  Andrews,  4  N.  Y.  493 ;  Young  v.  Johnson,  123  N.  Y.  226, 
25  N.  E.  363 ;  Chubb  v.  Gsell,  34  Pa.  114.  In  Matthews  v.  Huntley,  9 
N.  H.  146,  it  is  held  that  evidence  of  good  character  could  not  be  intro- 
duced after  defendant  had  given  evidence  to  prove  the  truth  of  the 
charge,  as  the  latter  was  not  strictly  impeaching  evidence.  Stow  v. 
Converse,  3  Conn.  325,  345,  8  Am.  Dec.  1S9,  and  Houghtaling  v.  Kilder- 
house,  1  N.  Y.  530,  are  to  the  same  effect. 

51  jNIcCowen  v.  Gulf,  etc.,  Ry.  Co.  (Tex.  Civ.  App.)  73  S.  W.  46. 

6  2  Stafford  v.  Association,  142  N.  Y.  598,  37  N.  E.  625.  In  Adams  v. 
Lawson,  17  Grat.  (Va.)  2.50,  94  Am.  Dec.  455,  the  question  was  square- 
ly decided  in  favor  of  the  admission  of  evidence  of  good  character 
in  the  first  instance ;  also  in  Shroyer  v.  Miller,  3  W.  Va.  158. 


216 


OPINION    EVIDENCE. 


(Ch.  10 


CHAPTER  X. 

OPINION   EVIDENCE. 

129-130.  Matter  of  Opinion  Distinguished  from   Matter  of  Fact. 

131.  General  Rule  as  to  Opinion  Evidence. 

1.32.  Apparent  Exceptions  to  General  Rule. 

133.  Distinguished  from    Expert   E\Mdence. 

134.  Opinion    Evidence   Proper — Reason   for   Admission. 
135-136.     Expert  Opinion  Evidence. 

137-138.  Distinction  Between  "Expert  Testimony  as  to  Facts"  and 
■   "Expert   Opinion."' 

139.  Matters  Forming  Subject  of  Expert  Opinion. 

140.  Hypothetical   Questions. 

141.  Damages  as  the  Subject  of  Opinion  Evidence. 
142-143.  Sanity  as  the  Subject  of  Expert  Opinion. 
144-145.  Handwriting  as  the  Subject  of  Expert  Testimony. 


MATTER    OF    OPINION   DISTINGUISHED    FROM    MATTER 

OF  FACT. 

129.  An   inference    as   to    tlie    existence    or   nonexistence   of   a 

fact  in  issue,  based  upon  other  facts  presented  direct- 
ly to  the  senses  of  the  witness,  is,  in  a  legal  sense, 
"opinion." 

130.  The  statement  of  such  inference  by  the  witness  is  "opin- 

ion evidence." 


Generally  speaking-,  it  may  be  said  that  opinion  is  the  ex- 
clusive province  of  the  jury,  and  that  witnesses  will  not  be  al- 
lowed to  invade  such  province.  A  witness  is  to  testify  to  facts, 
so  that  the  jury  may  form  an  opinion  as  to  such  facts  and  ren- 
der their  verdict  accordingly.^     In  a  practical  way,  and  having 

1  Foster  v.  Murphy  &  Co.,  135  Fed.  47,  67  C.  C.  A.  521,  whore  the 
question  was  as  to  whether  a  new  contract  had  been  made.  The 
court  held  that,  all  the  facts  respecting  what  the  parties  had  done 
and  said  having  been  testified  to,  the  witness  would  not  be  permit- 
ted to  state  directly  whether  or  not  a  new  contract  was  made.  In 
a  negligence  action  defendant  cannot  be  asked  whether  he  "willful- 
ly, negligently,  or  carelessly  failed  to  watch  and  look  after  the  fire." 
Sampson  v.  Hughes,  147  Cal.  62.  81  Pac.  292.  See.  also,  .Johnson 
V.  Town  of  Highland,  124  Wis.  597,   102  N.  W.  1085;    Valentini  y. 


§§  129-130)       MATTERS    OF   OPINION    AND   FACT.  217 

regard  to  the  ordinary  meaning  of  words,  there  is  a  clear  dis- 
tinction between  matter  of  opinion  and  matter  of  fact.  If  we 
look  at  the  matter  psychologically,  however,  and  with  a  nice  re- 
gard for  the  processes  of  the  mind,  every  statement  resolves  it- 
self into  a  matter  of  opinion.  The  conclusions  of  the  mind  are 
all  drawn  from  that  which  the  senses  perceive,  the  only  differ- 
ence being  in  the  degree  of  removal  from  the  immediate  impres- 
sion on  the  senses.  Every  statement  is  therefore  really  a  state- 
ment of  an  inference,  and  in  this  sense  all  evidence  is  opinion 
evidence.^ 

Take  the  case  where  the  question  was  as  to  why  the  plain- 
tiff did  not  get  into  a  street  car  and  thus  avoid  the  danger  of 
riding  upon  the  running  board.  He  was  asked  for  the  reason, 
and  answered  "that  it  was  so  crowded  it  was  impossible  for 
him  to  get  there  before  he  was  hurt."  In  one  sense  this  may 
be  said  to  be  a  statement  of  opinion — that  is,  the  conclusion  of 


Insurance  Co.,  106  App.  Div.  487,  94  N.  Y.  Supp.  758 ;  Miller  v.  Town 
of  Canton,  112  Mo.  App.  322,  87  S.  W.  96. 

2  Chamberlayne's  Best  on  Evidence  (8th  Ed.)  p.  473 :  "Accurate- 
ly to  distinguish  'matter  of  fact'  from  'matter  of  opinion'  is  not  less 
difficult  than  to  distinguish  it  from  'matter  of  law.'  In  all  suppos- 
ed statements  of  fact,  the  witness  really  testifies  to  the  opinion  form- 
ed by  the  judgment  upon  the  presentment  of  the  senses.  Statement 
of  opinion  is  therefore  necessarily   involved  in  statement  of  fact." 

There  are  many  cases  which  arise  where  the  question  raised  as 
to  some  particular  statement  of  the  M'itness  is  a  question  of  words 
rather  than  subject.  One  may  state  a  fact  in  several  ways,  and 
sometimes  the  use  of  one  word  will  import  an  opinion,  where  the 
use  of  another  will  accord  more  strictly  with  the  language  of  fact. 
In  one  case  the  witness  testified  that  the  defendant  "acknowledged 
that  he  took  the  horses  at  a  valuation  of  $50  per  head."  Under  ob- 
jection on  the  ground  that  the  statement  was  an  opinion,  it  was  held 
that  it  was  not.  Probably  the  question  would  not  even  have  been 
raised,  had  the  witness  used,  instead  of  the  word  "acknowledged," 
the  word  "said."     Hunter  v.  Davis,  128  Iowa,  216,  103  N.  W.  373. 

In  another  case  somewhat  similar,  but  perh.nps  a  little  stronger 
on  the  opinion  side,  the  court  held  that  a  witness  could  not  testify 
as  to  who  "induced  him  to  make  the  purdiase."  Jenkins  v.  Beachy, 
71  Kan.  8-57,  80  Pac.  947. 

A  witness  may  not  be  asked  whether  there  was  any  room  in  a  car 
for  other  men,  but  may  state  whether  there  was  any  vacant  or  un- 
occupied space  in  the  car,  according  to  Chicago  Terminal  Transp. 
R.  Co.  V.  O'Donnell,  114  111.  App.  345. 


218  OPINION   EVIDENCE.  (Ch.  10 

the  witness'  mind  upon  a  state  of  facts  presented  to  his  senses — 
and  in  the  case  in  question  there  was  sufficient  doubt  as  to  the 
nature  of  the  statement  to  cause  the  objection  to  be  raised,  yet 
the  court  held,  and  quite  properly,  that  legally  speaking  the 
statement  was  a  statement  of  fact,  and  not  opinion.^ 

This  is  a  good  illustration  of  that  class  of  cases  in  which 
argument  can  always  be  made  on  either  side  of  the  question. 

This  is  not,  however,  the  sense  in  which  the  word  "opinion" 
is  used  in  the  law  of  evidence.  Legally  speaking,  there  is 
matter  of  fact  and  there  is  matter  of  opinion.  It  is  true  that 
the  line  between  the  two  is  sometimes  difficult  to  draw,  but 
in  the  majority  of  cases  the  matter  in  question  clearly  falls 
within  one  class  or  the  other. 

The  general  rule  in  respect  to  opinion  evidence  may  be  stated 
as  follows : 


GENERAL  RULE  AS  TO   OPINION   EVIDENCE. 

131.  Upon  tte  qnestion  of  the  existence  or  nonexistence  of 
any  fact  in  issue,  whether  a  main  fact  or  evidentia- 
ry fact,  the  opinion  of  a  -witness  as  to  its  existence  or 
nonexistence  is  inadmissible. ^ 

3  Indianapolis  St  Ry.  Ck).  v.  Haverstick,  35  Ind.  App.  281,  74  N. 
E.  34,  111  Am.  St.  Rep.  163. 

4  A  clear  statement  of  the  rule,  and  a  discussion  of  it,  will  be 
found  in  the  opinion  of  Mr.  Justice  Harlan  in  Connecticut  Mut.  Life 
Ins.  Co.  V.  Lathrop,  111  U.  S.  G12,  618,  4  Sup.  Ct.  533,  28  L.  Ed.  536. 
See,  also,  Simmons  v.  Steamboat  Co..  97  Mass.  361,  371,  93  Am.  Dec. 
99 ;  People  v.  Sharp,  107  N.  Y.  427,  462,  14  N.  E.  319,  1  Am.  St.  Rep. 
851 ;  Cook  v.  Fuson,  66  Ind.  521 ;  Pennsylvania  Co.  v.  Conlan,  101 
111.  93 ;  Alabama  G.  S.  Ry.  Co.  v.  Tapia.  94  Ala.  226,  230,  10  South. 
236 ;  Weeks  v.  Town  of  Lyndon,  54  Vt.  638 ;  City  of  Parsons  v.  Lind- 
say, 26  Kan.  426.  432 ;  Strong  v.  City  of  Stevens  Point,  62  Wis.  255, 
22  N.  W.  425 ;  Houston  &  T.  C.  R.  Co.  v.  Smith,  52  Tex.  179,  186 ; 
Spencer  v.  Railway  Co.,  120  ISIo.  154,  23  S.  AV.  126,  22  L.  R.  A.  668 ; 
Street  R.  Co.  v.  Nolthenius,  40  Ohio  St.  376;  State  v.  Starnes,  94 
N.  C.  073,  976.  In  Teerpenning  v.  Insurance  Co.,  43  N.  Y.  279,  the 
plaintiff  sued  upon  a  policy  for  the  value  of  goods  destroyed  by  fire. 
A  witness  who  was  not  shown  to  have  any  knowledge  as  to  the  char- 
acter, quantity,  quality,  or  value  of  the  goods,  but  who  had  testified 
that  he  was  in  the  store  frequently,  was  allowed  to  answer  the  ques- 
tion, "What  amount  of  goods  were  there  in  the  store  at  the  time  of 
the  fire,  according  to  your  estimate?"     In  granting  a  new  trial  on 


§  131)  GENEEAL   RULE.  219 

Whatever  is  presented  to  the  senses  of  a  witness,  and  of 
which  he  therefore  receives  direct  knowledge,  he  may  state, 
provided  it  is  relevant  to  the  issue,  and  not  excluded  on  some 
other  ground.  This  is  strictly  matter  of  fact.  What  he  has 
seen  or  heard  or  felt,  he  knows,  in  the  sense  in  which  the  law 
requires  knowledge  on  the  part  of  a  witness  testifying.  What 
he  thinks  in  respect  to  the  existence  or  nonexistence  of  a  fact 
in  issue  is  matter  of  opinion,  and  he  cannot  state  it.  It  is  for 
him  to  put  before  the  jury  the  facts  as  he  has  perceived  them 
by  his  senses,  and  for  the  jury  to  form  an  opinion  concern- 
ing the  facts  in  proof  of  which  the  evidence  is  offered.^ 

There  are  certain  exceptions  to  the  rule  which  excludes  opin- 
ion evidence,  and  there  are  also  many  other  matters  which  have 
been  treated  as  exceptions  to  the  rule,^  but  which  it  is  better 
to  regard  as  coming  within  a  broad  definition  of  matters  of 
fact. 

the  ground  of  error  in  the  admission  of  this  testimony,  the  court  say 
(page  281) :  "As  a  rule,  witnesses  must  state  facts,  and  not  draw 
conclusions  or  give  opinions.  It  is  the  duty  of  the  jury  or  court  to 
draw  conclusions  from  the  evidence,  and  form  opinions  uix>n  the 
facts  proved.  The  cases  in  which  opinions  of  witnesses  are  allow- 
able constitute  exceptions  to  the  general  rule,  and  the  exceptions  are 
not  to  be  extended  or  enlarged  so  as  to  include  new  cases,  except  as 
a  necessity  to  prevent  a  failure  of  justice,  and  when  better  evidence 
cannot  be  had."  Compare  Ryall  v.  Allen,  143  Ala.  222,  38  South.  851, 
where  the  question,  "What  amount  of  stock  was  destroyed  by  de- 
fendant's stock?"  was  held  to  call  for  facts,  and  not  opinion. 

5  In  Ogden  v.  People.  134  111.  599,  25  N.  E.  755,  X.  was  tried  for 
robbery,  and  several  witnesses  testified  that  on  the  night  of  the  rob- 
bery they  recognized  him  by  his  voice,  though  they  did  not  see  him. 
The  testimony  was  objected  to  as  opinion.  The  court  treats  the  ques- 
tion as  follows  (page  601,  134  111.,  and  page  75G,  25  N.  E.) :  "The 
statement  by  the  witnesses  for  the  prosecution  of  a  fact  which  they 
ascertained  through  the  sense  of  hearing  was  not  the  statement  of 
mere  matter  of  opinion,  but  the  statement  of  a  conclusion  reached 
directly  and  primarily  from  an  operation  of  the  sense  of  hearing.  A 
witness  can  learn  and  know  facts  by  and  through  the  exercise  of  his 
perceptive  faculties — his  five  senses — and  such  facts  he  may  state." 
In  Com.  V.  Scott,  123  Mass.  222,  225,  25  Am.  Rep.  81,  a  witness  was 
allowed  to  give  similar  testimony,  identifying  the  accused  by  his 
voice,  though  witness  said  he  could  not  answer  as  to  whether  there 
was  any  peculiarity  about  the  voice,   and  it  was  held  not  permissi- 

6  Chase's  note  to  Steph.  Dig.  Ev.  art.  48. 


220  OPINION    EVIDENCE.  (Ch.  10 


APPARENT   EXCEPTIONS   TO   GENERAL   RULE. 

132.  The  instantaneous  conclusions  of  tlie  mind  as  to  tlie  ap- 
pearance, condition,  or  mental  or  physical  state  of 
persons,  animals,  and  things,  derived  from  observa- 
tion of  a  variety  of  facts  presented  to  the  senses  at 
one  and  the  same  time,  are,  legally  speaking,  matters 
of  fact,  and  are  admissible  in   evidence. 

The  matters  referred  to  are  those  of  which  the  mind  acquires 
knowledge  by  the  simultaneous  action  of  several  of  the  senses, 
so  that  an  impression  is  produced  on  the  mind  which  cannot 
be  traced  to  any  one  fact  perceived  by  a  single  sense,  but  a 
statement  of  which  is  nevertheless  a  statement  of  a  matter  of 
fact.^     A  witness  may  say  that  a  man  appeared  intoxicated 
or  angry  or  pleased.     In  one  sense  the  statement  is  a  conclu- 
sion or  opinion  of  the  witness,  but  in  a  legal  sense,  and  with- 
in the  meaning  of  the  phrase  "matter  of  fact,"  as  used  in  the  law 
of  evidence,  it  is  not  opinion,  but  is  one  of  the  class  of  things 
above  mentioned,  which  are  better  regarded  as  matters  of  fact. 
The  appearance  of  a  man,  his  actions,  his  expression,  his  con- 
versation— a  series  of  things — go  to  make  up  the  mental  pic- 
ture in  the  mind  of  the  witness  which  leads  to  a  knowledge 
which  is  as  certain,  and  as  much  a  matter  of  fact,  as  if  he  tes- 
tified, from  evidence  presented  to  his  eyes,  to  the  color  of  a 
person's  hair,  or  any  other  physical  fact  of  like  nature.^ 

ble  for  the  accused  to  give  an  illustration  of  his  voice  to  the  jury 
for  the  purpose  of  further  inquiry  of  witness  in  regard  to  his  means 
of  recognizing  it. 

7  Com.  V.  Thompson,  159  Mass.  56,  .33  N.  E.  1111,  where  witness 
was  permitted  to  testify'  that  she  noticed  certain  changes  in  her 
daughter,  and  that  they  indicated  to  her  that  her  daughter  was  in 
a  family  way.  Schlencker  v.  State,  9  Neb.  241,  1  N.  W.  S.'.T,  where 
witnesses  testified  that  the  defendant,  who  was  accused  of  murder, 
on  the  day  of  the  murder  "acted  funnier  than  he  ever  did  before," 
"looked  kind  of  fierce,"  "looked  as  if  he  was  dreaming— as  if  there 
was  soiuethiiig  on  his  mind."  Powers  v.  State.  23  Tex.  App.  42,  63, 
5  S.  W.  153. 

8  In  Connecticut  Mut.  Life  Ins.  Co.  v.  Lathrop.  Ill  U.  S.  612,  4 
Sup.  Ct.  533,  28  L.  Ed.  53G,  the  plaintiff  sued  on  an  insurance  pol- 
icy upon  the  life  of  her  husband.  The  defense  was  that  the  husband 
cpmmitted  suicide.     The  plaintiff,   to   meet   the  defense   of  suicide. 


§  132)         EXCEPTIONS  TO  GENERAL  RULE.  221 

This  class  of  evidence  is  treated  in  many  of  the  cases  as  opin- 
ion admitted  under  exception  to  the  general  rule,^  and  in  others 
as  matter  of  fact — "shorthand  statement  of  fact,"  as  it  is  called. 
It  seems  more  accurate  to  treat  it  as  fact,  as  it  embraces  only 
those  impressions  which  are  practically  instantaneous,  and  re- 
quire no  conscious  act  of  judgment  in  their  formation.     The 

sought  to  show  that  her  husband  was  insane,  and  called  a  servant 
in  the  family,  and  other  witnesses  acquainted  with  him.  These  wit- 
nesses were  permitted  to  testify  that  the  deceased  "loolied  like  he 
was  insane,"  in  connection  with  describing  his  appearance  and  ac- 
tions. In  reference  to  this  kind  of  testimony.  .Justice  Harlan  says 
<page  620,  111  U.  S.,  and  page  537,  4  Sup.  Ct.  [28  L.  Ed.  536]) :  "The 
truth  is,  the  statement  of  a  nonprofessional  witness  as  to  the  san- 
ity or  insanity  at  a  particular  time  of  an  individual  whose  appear- 
ance, manner,  habits,  and  conduct  came  under  his  personal  observa- 
tion is  not  the  expression  of  mere  opinion.  In  fine,  it  is  opinion,  be- 
cause it  expresses  an  inference  or  conclusion  based  upon  observation 
of  the  appearance,  manner,  and  motions  of  another  person,  of  which 
a  correct  idea  cannot  well  be  communicated  in  words  to  others,  with- 
out embodying,  more  or  less,  the  impressions  or  judgment  of  the  wit- 
ness. But  in  a  substantial  sense,  and  for  every  purpose  essential  to 
n  safe  conclusion,  the  mental  condition  of  an  individual,  as  sane  or 
insane,  is  a  fact,  and  the  expressed  opinion  of  one  who  has  had  ade- 
<iuate  opportunities  to  observe  his  conduct  and  appearance  is  but  the 
statement  of  a  fact."  And  in  Dunham's  Appeal,  27  Conn.  192  (page 
199),  it  is  said  in  reference  to  this  class  of  evidence :  "The  judgment 
of  a  witness,  founded  on  actual  observation  of  the  capacity,  dispo- 
sition, temper,  character,  peculiarities  of  habit,  form,  features  or 
handwriting,  of  others,  is  different  from,  and  more  than,  a  mere 
opinion  of  an  expert.  It  approaches  to  knowledge,  and  in  fact  is 
"knowledge,  so  far  as  the  imperfection  of  human  nature  will  permit 
knowledge  of  these  things   to  be  acquired,  and  such  knowledge  is 

9  In  De  Witt  v.  Barly,  17  N.  Y.  340,  353,  the  evidence  is  treated 
as  opinion.  The  question  was,  "Did  you  discover  any  change  in  Mr. 
De  Witt  before  you  moved  off  the  premises?"  and  the  answer:  "I 
did.  It  appears  the  old  man  was  getting  a  little  childish.  I  thought 
so.  *  *  *  The  old  man  was  a  little  light-headed,  some  way,  I 
took  it,  in  the  way  of  business."  This  is  plainly  the  ordinary  case 
of  the  witness  giving  his  impression  caused  by  the  appearance  or  ac- 
tions, or  both,  of  the  person  referred  to.  The  court  say  in  reference 
to  it:  "It  is  obvious  that  this  entire  answer  consisted  solely  of  the 
expression  of  the  opinion  of  the  witness,  bearing  in  the  most  direct 
manner  upon  the  very  point  to  be  determined."  The  court  held  it 
admissible  as  an  exception  to  the  rule.  See,  also,  McKillop  v.  Rail- 
way Co.,  53  Minn.  532,  55  N.  W.  739 ;  McCabe  v.  San  Antonio  Trac- 
tion Co.  (Tex.  Civ.  App.)  88  S.  W.  387. 


222  OPINION    EVIDENCE.  (Ch.  10 


evidence  is  almost  universally  admitted,  and  very  properly,  as 
it  is  helpful  to  the  jury,  in  aiding  to  a  clearer  comprehension 
of  the  facts. 

SAME— DISTINGUISHED  FROM  EXPERT  EVIDENCE. 

133.  Evidence  of  this  sort  is  not  expert  evidence,  and  should 
not  be  confused  with  it.  It  may  be  given  by  any  per- 
son who  is  competent  as  a  witness,  and  under  whose 
observation    the    facts    have    come. 

proper  evidence  for  the  jury."     Com.  v.  Sturtivant,  117  Mass.  122. 
19  Am.  Rep.  401 ;    Village  of  Shelby  v.  Clagett,  46  Ohio  St.  549,  22 
N.  E.  407,  5  L.  R.  A.  GOG;    Kansas  Tae.  Ry.  Co.  v.  Whipple,  39  Kau. 
531,  537,  18  Pac.  730.    The  following  are  some  of  the  matters  which, 
viewed  in  their  true  light,  as  matters  of  fact  ("shorthand  interpre- 
tations of  fact,"  as  it  has  sometimes  been  expressed),  or  upon  the 
erroneous  theory  that  they  were  matters  of  opinion,  and  exceptions 
to  the  general  rule,  have  been  admitted:     That  a  person  looked  or 
acted  in  an  irrational  manner,  Paine  v.  Aldrich,   133  N.  Y.  544,  30 
N.  E.  725;    Charter  Oak  Life  Ins.  Co.  v.  Rodel,  95  U.  S.  232,  24  L. 
Ed.  433;    People  v.   Lavelle,  71   Cal.  351,   12   Pac.   226;    or  looked 
"fierce,"  Schlencker  v.  State,  9  Neb.  248,  1  N.  W.  857;    or  "scared," 
State  V.  Ramsey,  82  Mo.  133,  137 ;    or  "seemed  unfriendly,"  Blalce  v. 
People,  73  N.  Y.  58G ;    or  "spoke  affectionately,"  Appeal  of  Spencer, 
77  Conn.  638,  60  Atl.  289 ;   Polk  v.  State,  62  Ala.  237 ;    State  v.  James, 
31  S.  C.  218,  2.33,  9  S.  E.  844 ;   that  a  person  appeared  "sober"  or  "in- 
toxicated," People  V.  Eastwood,  14  N.  Y.  562;    Castuer  v.  Sliker,  33 
N.  J.  Law,  95 ;    City  of  Aurora  v.  Hillman,  90  111.  61 ;    Cook  v.  In- 
surance Co.,  84  Mich.  12,  47  N.  W.  568 ;   that  a  young  woman  "seemed 
sincerely  attached  to  a  young  man,"  McKee  v.  Nelson,  4  Cow.  (N.  Y.) 
355,  15  Am.  Dec.  384 ;   that  a  horse  "appeared  tired,"  State  v.  Ward, 
61  Vt.  153,  181,  17  Atl.  483 ;    that  snow  "looked  as  if  some  one  had 
fallen  there  and  left  the  impress  of  his  body,"  Rothrock  v.  City  of 
Cedar  Rapids,  128  Iowa,  2.52,  103  N.  W.  475.     So,  also,  a  nurse  has 
been  permitted  to  testify  to  a  "numbness"  in  her  patient,  Will  v.  Vil- 
lage of  Mendon,  108  Mich,  251,  66  N.  W.  58.     Testimony  as  to  a  per- 
son's state  of  health — whether  he  had  "failed,"  or  appeared  in  "good" 
or  "bad  health" — is  admissible  on  the  same  principle,  Com.  v.  Brayman, 
136  Mass.  438;    South  &  North  Ala.  R.  Co.  v.  McLendon,  63  Ala. 
266 ;    Smalley  v.  City  of  Appleton,  70  Wis.  340,  35  N.  W.  729 ;    as  to 
"mental  anguish"  suffered  by  reason  of  failure  to  deliver  a  telegram, 
Sherrill  v.  Telegraph  Co.,  117  N.  C.  352,  23  S.  E.  277.     Testimony 
that  a  spot  was  "blood"  is  held  to  be  within  the  same  rule  in  Green- 
lield  V.  People,  85  N.  Y.  75,  83,  39  Am.  Rep.  636.     But  it  has  been 
held  that  a  witness  may  not  give  his  opinion  that  plaintiQ;  was  feign- 
ing.    McCormick  v.  Railway  Co.,  141  Mich.  17,  104  N.  W.  390. 


§  133)         EXCEPTIONS  TO  GENERAL  RULE.  223 

Evidence  of  this  sort  is  sometimes  confused  with  expert  evi- 
dence. It  is  in  no  sense  expert  evidence,  and,  if  a  witness  put 
on  the  stand  as  an  expert  testifies  to  such  facts,  he  leaves  his 
character  as  an  expert,  and  testifies  only  to  what  any  ordinary 
witness,  who  has  had  the  opportunity  to  acquire  the  knowl- 
edge, can  testify  to.  It  is  a  method  of  placing  before  the  jury, 
in  a  general  and  broad  way,  a  group  of  facts  which,  in  detail, 
would  be  difficult  of  description,  but  which,  as  a  whole,  make 
up  a  certain  conception,  grasped  at  once  by  the  mind.^*' 

The  admissibility  of  such  evidence  does  not  extend  to  cases 
where  it  would  not  prove  helpful  to  the  jury,  nor  where  its 
application  would  carry  the  witness  into  an  expression  of  real 
opinion  upon  matters  which  it  is  the  jury's  province  to  de- 
cide.^^  In  some  of  the  cases  which  are  just  on  the  line  between 
opinion  and  fact,  it  has  been  held,  in  certain  instances  where 

10  In  Com.  V.  Sturtivant,  117  Mass.  122,  19  Am.  Rep.  401,  a  wit- 
ness was  allowed  to  state  that  a  pair  of  shoes  looked  as  if  they  had 
been  washed.  In  reference  to  this  testimony  the  court  says  (page 
138  of  117  Mass.  [19  Am.  Rep.  401]) :  "The  witness  stated  the  result 
of  his  obsen^ation  made  at  the  time,  of  appearances  that  could  not 
be  reproduced  or  accurately  described  in  words  to  the  jury ;  and  his 
testimony  related  to  a  subiect-matter  within  the  common  observa- 
tion aud  experience  of  men."  To  the  same  effect  are  Town  of  Cav- 
endish V.  Town  of  Troy.  41  Vt.  99,  108;  State  v.  Buchler,  103  Mo. 
203,  207,  15  S.  W.  331 ;  Rothrock  v.  City  of  Cedar  Rapids,  128  Iowa, 
252,  103  N.  W.  475. 

11  In  Ferguson  v.  Hubbell,  97  N.  Y,  507,  49  Am.  Rep.  544,  A.  sued 
X.  for  damages  caused  by  fire  alleged  to  have  been  negligently  built 
by  X.  on  his  land,  from  which  it  was  communicated  to  A.'s  land. 
A.'s  contention  was  that  in  consequence  of  the  wind,  and  dryness  of 
the  ground  and  brush,  it  was  an  improper  time  to  build  fires  to  clear 
the  laud.  The  court  allowed  a  witness  to  answer  the  question,  "What 
do  you  say  as  to  whether  it  was  a  proper  time,  or  not,  to  burn  a  fal- 
low?" This  was  held  erroneous,  upon  the  ground  that  it  asked  for 
an  opinion  upon  a  controlling  issue,  which  was  to  be  determined  by 
the  jury.  See  Dooner  v.  Canal  Co.,  164  Pa.  17,  33,  30  Atl.  269,  271, 
where  it  is  said:  "The  jury  still  have  some  duties  to  perform.  In- 
ferences drawn  from  the  ordinary  afEairs  of  life  ought  not  to  be 
drawn  for  them,  and  turned  over  under  oath  from  the  witness  stand." 
See,  also,  City  of  Parsons  v,  Lindsay,  26  Kan.  426 ;  Wight  Fireproof- 
ing  Co.  V.  Poezekai,  130  111.  139,  22  N.  E.  543 ;  Stowe  v.  Bishop,  58 
Vt.  498,  3  Atl.  494,  56  Am.  Rep.  569;  Gutridge  v.  Railway  Co.,  94 
Mo.  468,  472,  7  S.  W.  476,  4  Am.  St.  Rep.  392 ;  Courser  v.  Kirkbride, 
23  N.  B.  404 ;    Coe  v.  Van  Why,  33  Colo.  315,  80  Pac.  894 ;    Dolon  v. 


224  OPINION    EVIDENCE.  (Ch.  10 

it  appears  that  it  will  really  aid  the  jury,  that  an  ordinary  ob- 
server, in  connection  with  a  statement  of  the  facts,  may  give 
his  opinion  based  upon  them.^-  Some  of  the  cases  go  to  an 
extent  which  hardly  seems  warranted  by  the  principle  upon 
which  this  class  of  quasi  opinion  evidence  is  admitted,  and  al- 
low what  seems  to  be  strictly  opinion  evidence.^ ^ 


OPINION  EVIDENCE  PROPER— REASON  FOR  ADMISSION. 

134.  Opinion  evidence  seems  to  have  been  originally  admit- 
ted as  an  aid  to  tlie  court,  but  finally  came  to  be  ad- 
mitted solely  on  the  ground  of  assistance  to  the  jury. 

The  original  character  of  the  jury  was  that  of  witnesses  to 
the  facts,  which  they  were  called  upon  to  decide  from  their  own 
knowledge.  They  were  expected  to  draw  their  conclusions  and 
give  their  opinion  as  to  the  facts  in  issue.  As  has  been  seen, 
the  development  of  the  jury  system  eliminated  from  it  that 
feature  which  required  the  jurymen  to  be  persons  who  had 
original  knowledge  of  the  facts,  and,  in  the  final  outcome,  with- 
drew from  their  consideration  any  facts  of  which  they  had 

Herring-IIall-Marvin  Co.,  105  App.  Div.  3G(J,  94  N.  Y.  Supp.  241 ;    City 
of  Lawrence  v.  Town  of  Methuen,  187  Mass.  592,  73  N.  E.  860. 

12  In  Armstrong  v.  Railway  Co..  45  Minn.  85,  47  N.  W.  459,  tbe 
action  was  for  damages  to  A.'s  horse  wliile  in  the  possession  of  the 
defendant  for  puriroses  of  transportation ;  the  claim  being  that  de- 
fendant put  the  horse  in  an  unsafe  stable,  where  the  horse  was  ex- 
posed to  cold  and  wind.  The  defendant  offered  the  testimony  of  a 
farmer  acquainted  with  the  country  and  the  stable  in  question,  and 
proposed  to  ask  him,  as  an  expert,  whether  he  considered  the  sta- 
ble a  safe  and  suitable  one.  It  was  held  that  the  testimony  was 
admissible.  This  case  goes  a  long  way  beyond  the  usual  limitation 
of  opinion  evidence,  and  is  scarcely  to  be  defended  on  principle.  See, 
also,   International  &  G.  N.  Ry.  Co.  v.  Klaus,  64  Tex.  293. 

13  Ryan  v.  Town  of  Bristol,  63  Conn.  26,  .37.  27  Atl.  309,  where  the 
question  being  as  to  the  dangerous  character  of  the  highway,  in  an 
action  for  negligence,  a  witness  was  permitted  to  answer  the  ques- 
tion, "With  that  rail  down,  and  that  place  in  the  condition  you  have 
described,  I  ask  you  whether  or  not  the  place  was  bad  and  danger- 
ous?" See,  also,  Sydlemnn  v.  Beckwith,  43  Conn.  9;  Jones  v.  Fuller, 
19  S.  C.  66,  45  Am.  Rep.  761,  where,  in  an  action  for  breach  of  prom- 
ise of  marriage,  witnesses  were  asked,  "From  what  you  know  of  all 
the  facts  and  circumstances,  how  much  was  the  plaintiff  damaged?" 


§  134)  OPINION   EVIDENCE   PROPER.  225 

original  knowledge,  confining  them  to  such  facts  only  as  should 
be  presented  to  them  at  the  trial.  This  left  to  the  jury  simply 
the  duty  of  drawing  conclusions  from  facts  presented.  In 
many  cases  it  was  impossible  to  present  to  the  minds  of  the 
jury,  who  were  supposed  to  have  no  previous  knowledge,  the 
facts  in  such  detail  as  to  furnish  grounds  for  intelligent  opin- 
ion. Sometimes  this  was  due  to  the  facts  being  so  numerous, 
uncertain,  or  incapable  of  description,  as  to  be  difficult  to  pre- 
sent. At  other  times  it  happened  that  the  matters  about  which 
it  was  necessary  for  the  jury  to  form  an  opinion  were  of  such 
a  technical  or  scientific  nature  that,  even  were  the  facts  pre- 
sented to  the  jury,  they  would  be  incapable  of  forming  an  in- 
telligent opinion.  These  considerations  led  to  the  admitting  of 
opinion  evidence.^* 

It  has  been  said  that  opinion  evidence  was  originally  admit- 
ted for  the  purpose  of  helping  the  court — helping  it  in  a  way 
which  would  render  it  possible  for  the  court  to  give  the  jury 
proper  instructions  with  regard  to  the  facts. ^"  The  final  de- 
velopment of  the  practice  as  to  the  admission  of  opinion  evi- 
dence was  that  in  the  class  of  cases  mentioned  it  was  allowed 
as  an  aid  to  the  jury  in  making  up  their  minds  upon  matters 
about  which,  without  it,  they  might  with  difficulty  come  to  an 
intelligent  understanding.^^  The  principle  is  clear  enough,  but 
in  its  application  it  often  leads  to  what  seem  to  be  inconsistent 
results.  All  that  can  be  said  is  that  in  each  case  the  court  must 
decide  the  question  on  a  careful  consideration  of  the  particu- 
lar circumstances  under  which  it  arises,  and  if,  in  the  judg- 

14  Folher  v.  Chadd  (17S2)  3  Doug.  157,  was  a  case  in  which  an  en- 
gineer was  called  to  show  the  effect  of  an  embankment  upon  the  fill- 
ing up  of  a  harbor.  Lord  Mansfield  says:  "Mr.  Smeaton  [the  wit- 
ness] understands  the  construction  of  harbors,  the  cause  of  their  de- 
struction, and  how  remedied.  In  matters  of  science,  no  other  wit- 
nesses can  be  called."  Thornton  v.  Assurance  Co.  (1790)  Peake,  37 ; 
Beckwith  v.  Sydebotham  (1807)  1  Camp.  116. 

15  Thayer,  Gas,  Ev.  (2d  Ed.)  p.  672,  note.  Prof.  Thayer  cites  several 
cases  which  seem  to  bear  out  the  opinion  expressed  in  his  note,  that 
experts  came  into  court  originally  as  helpers  of  the  court,  to  wit :  Lib. 
Ass.  (1353)  p.  145,  pi.  5 ;  Y.  B.  (1403)  9  Hen.  VII,  p.  16,  pi.  8 ;  Al- 
sop  V.  Bowtrell,  Cro.  Jac.  (1619)  541. 

16  Van  Wycklen  v.  City  of  Brooklyn,  118  N,  Y.  424,  429,  24  N.  E. 
179. 

M'KELV.EV.(2d  ED.)— 15 


226  OPINION    EVIDENCE.  (Ch.  10 

ment  of  the  court,  the  jury  would  be  materially  helped  by  the 
admission  of  the  evidence,  it  is  to  be  received.  This  does  not 
mean  that  the  jury  are  to  receive  opinion  evidence  merely  be- 
cause a  witness  can  be  produced  who  is  better  educated,  has 
a  wider  range  of  knowledge  and  more  acute  reasoning  powers, 
and  who  might  therefore  express  opinions  with  more  accuracy 
than  the  jurymen  themselves."  It  is  the  nature  of  the  subject- 
matter  under  examination,  rather  than  the  particular  facts  put 
before  the  jury,  which  must  be  looked  to.  The  particular  facts 
may  be  clear  and  undisputed,  and  yet  the  jury  be  utterly  un- 
able to  draw  any  intelligent  conclusion  from  them  without 
the  aid  of  outside  opinion.  Issues  in  respect  to  disease,  its 
causes  and  effects,  which  frequently  arise  in  the  cases,  present 
instances  of  this  sort.  A  skilled  physician,  qualified  by  educa- 
tion and  experience,  can  arrive  at  an  opinion  where  men  in 
the  ordinary  walks  of  life  would  be  utterly  at  a  loss.  Opinion 
in  such  a  case  is,  by  the  nature  of  the  subject,  made  not  only 
proper,  but  necessary.  In  such  a  case  there  is  no  difficulty. 
It  is  in  those  cases  which  are  nearer  the  line  of  practical  every- 
day matters  that  the  difficulties  arise.  When  a  witness,  for 
example,  is  put  before  the  jury  to  give  his  opinion  as  to  wheth- 
er a  certain  time  of  year  was  a  proper  time  to  set  fire  to  fallow 
lands,^*   whether  a   stable   is  an   unsafe   stable   for  horses, ^^ 

17  New  England  Glass  Co.  v.  Lovell,  7  Ciish.  (Mass.)  319,  Shaw, 
C.  J.,  uses  the  following  language  in  explanation  of  the  principle 
upon  which  opinion  evidence  is  admissible  (page  321) :  "Now,  when 
this  experience  is  of  such  a  nature  that  it  may  be  presumed  to  be 
within  the  common  experience  of  all  men  of  common  education,  mov- 
ing in  the  ordinary  walks  of  life,  there  is  no  room  for  the  evidence 
of  opinion ;  it  is  for  the  jury  to  draw  the  inference.  It  is  not  he- 
cause  a  man  has  a  reputation  for  superior  sagacity  and  judgment 
and  power  of  reasoning  that  his  opinion  is  admissible.  If  so,  such 
men  might  be  called  in  all  cases  to  advise  the  jury,  and  it  would 
change  the  mode  of  trial.  But  it  is  because  a  man's  professional  pur- 
suits, his  peculiar  skill  and  knowledge  in  some  department  of  sci- 
ence not  common  to  men  in  general,  enable  him  to  draw  an  infer- 
ence where  men  of  common  experience,  after  all  the  facts  proved, 
would  be  left  in  doubt."  National  Gas  Light  &  Fuel  Co.  v.  Mieth- 
ke,  35  111.  App.  629;    Horst  v.  Lewis,  71  Neb.  365,  103  N.  W.  460. 

18  Ante,  p.  223,  note  10.  In  Ferguson  v.  Hubbell.  97  N.  Y.  507,  513, 
49  Am.  Rep.  544,  the  rule  in  regard  to  the  admission  of  expert  tes- 

19  Armstrong  v.  Railway  Co.,  45  Minn.  85,  47  N.  W.  4.59. 


§  134)  OPINION    EVIDENCE    PROPER.  227 

whether  a  fight  is  a  "prize  fight,"-^  or  whether  the  keeping  of 
cows  in  connection  with  a  hotel  is  unprofitable,-^  the  court  is 
presented  with  the  question  whether,  because  some  men  know 
more  about  the  matters  than  others,  and  more,  it  may  appear, 
than  the  jury  is  likely  to  know,  even  after  all  the  testimony  is 
in,  and  their  opinions  may  be  submitted  to  aid  the  jury  in 
arriving  at  a  conclusion.  All  that  need  be  said  is  that  it  rests 
in  the  sound  discretion  of  the  court  as  to  whether  the  subject  is 
one  which  permits  of  opinion  testimony  being  given.  The  cur- 
rent of  the  decisions  shows  that  the  prerogative  of  the  jury  to 
form  their  own  opinions  is  well  guarded.-^ 

timonj'  is  well  stated  by  Judge  Earl :  "It  is  not  sufficient  to 
warrant  the  introduction  of  expert  testimony  that  the  witness  may 
know  more  of  the  subject  of  inquiry,  and  may  better  comprehend 
and  appreciate  it,  than  the  jury;  but,  to  warrant  its  introduction, 
the  subject  of  the  inquiry  must  be  one  relating  to  some  trade,  pro- 
fession, science,  or  art  in  which  persons  instructed  therein  by  study 
or  experience  may  be  supposed  to  have  more  skill  and  knowledge  than 
jurors  of  average  intelligence  may  be  presumed  generally  to  have.  The 
jurors  may  have  less  skill  and  experience  than  the  witnesses,  and  yet 
have  enough  to  draw  their  own  conclusions,  and  do  justice  between 
the  parties.  When  the  facts  can  be  placed  before  a  juiy.  and  they 
are  of  such  a  nature  that  jurors  generally  are  just  as  competent  to 
form  opinions  in  reference  to  them,  and  draw  inferences  from  them, 
as  witnesses,  then  thei'e  is  no  occasion  to  resort  to  expert  or  opin- 
ion evidence." 

2  0  Seville  v.  State.  49  Ohio  St.  117,  30  N.  E.  621,  15  L.  R.  A.  516. 

21  Smith  V.  Stevens,  33  Colo.  427.  81  Pac.  35.  It  was  held  here 
that  the  subject  was  of  such  general  knowledge  that  the  jury  should 
be  left  to  form  their  own  opinion. 

2  2  National  Biscuit  Co.  v.  Nolan.  138  Fed.  6.  70  C.  C.  A.  436.  Opin- 
ion evidence  has  been  held  inadmissible  as  to  whether  certain  signals 
given  by  a  railroad  company  are  reasonable  or  mireasonable.  Hill 
V.  Railroad  Co.,  55  Me.  438.  444,  92  Am.  Dec.  601.  See,  also,  along 
the  same  line.  Oakes  v.  Weston.  45  Vt.  430;  Seliger  v.  Bas-tian,  66 
Wis.  521,  29  N.  AV.  244;  Muldowney  v.  Railway  Co.,  36  Iowa,  462, 
472 ;  as  to  vacancy  to  a  house  increasing  danger  of  loss  by  fire,  Mil- 
waukee &  St.  P.  R.  Co.  V.  Kellogg,  94  U.  S.  469,  24  L.  Ed.  256 ;  Luce 
V.  Insurance  Co.,  105  Mass.  297,  7  Am.  Rep.  522 ;  Kirby  v.  Insurance 
Co.,  9  Lea  (Tenn.)  142 ;  contra,  Cornish  v.  Insurance  Co.,  74  N.  Y. 
295 ;  as  to  whether  two  labels  are  so  similar  as  to  be  calculated  to 
deceive  an  ordinarily  careful  person,  Radam  v.  Microbe  Destroyer 
Co.,  81  Tex.  122.  120.  16  S.  W.  990,  26  Am.  St.  Rep.  783 ;  as  to  wheth- 
er a  certain  fast-mail  train  was  a  "passenger  train,"  Illinois  Cent. 
R.  Co.  V.  People,  143  111.  434.  449,  33  N.  E.  173,  19  L.  R.  A.  119 ;    as 


228  OPINION    EVIDENCE.  (Ch.  10 


EXPERT   OPINION   EVIDENCE. 

135.  The  class  of  opinion  evidence  whicli  forms  a  real  excep- 

tion to  the  excluding  rule  is  that  which  is  generally 
denominated   as    "expert   evidence." 

136.  The    rules   with    respect    to   the   use   of    expert    evidence, 

and  the  manner  of  its  introduction,  are  numerous. 
They  follow,  in  the  main,  the  principle  of  furnishing 
assistance  to  the  jury  upon  the  subject  to  which  the 
evidence    relates. 

When  a  witness  is  offered  as  an  expert,  the  court  is  con- 
fronted with  two  preUminary  questions:  First,  whether  the 
subject  is  one  upon  which  expect  testimony  is  admissible; 
second,  whether  the  person  offered  as  a  witness  is  an  expert. 
As  heretofore  explained,  there  is  a  well-recognized  principle 
upon  which  the  first  question  is  decided, — that  of  furnishing 
aid  to  the  jury  in  matters  difficult  for  an  ordinarily  intelligent 
person  to  understand.  The  question  is  one  for  the  court's  de- 
termination upon  all  the  facts  as  they  appear. 

If  it  be  determined  that  the  subject  is  a  proper  one  for  the 
introduction  of  expert  testimony,  the  next  question  is  whether 
or  not  the  witness  offered  is  an  expert.  If  he  is  not,  his  opinion 
cannot  go  before  the  jury.  Preliminary  evidence  must  there- 
fore be  offered  to  show  that  the  witness  is  an  expert.  This 
evidence  is,  however,  confined  to  testimony  of  the  witness  him- 
self, as  to  his  special  qualifications,  and  it  is  for  the  determina- 
tion of  the  court,  and  not  the  jury,  whether  he  is  sufficiently 
qualified.-^ 

to  whether  a  proposed  ehansre  in  a  highway  was  of  public  titility, 
Johnson  v.  Anderson,  143  Ind.  493,  42  N.  E.  815;  as  to  whether  a 
party  whose  temperament  witness  has  testified  to  would  do  an  act 
attributed  to  him,  Smith  v.  Smith,  117  N.  C.  32G,  23  S.  E.  270.  Opin- 
ion evidence  has  sometimes  been  excluded  on  the  ground  that  the 
subject  was  beyond  the  powers  of  any  person,  expert  or  nonexpert. 
to  express  an  opinion  upon,  and  in  such  case  the  jury  must  be  left 


23  Montana  Ry.  Co.  v.  Warren,  137  U.  S.  348,  353,  11  Sup.  Ct.  OG, 
34  L.  Ed.  681;  Slocovich  v.  Insurance  Co.,  108  N.  Y.  56,  14  N.  E. 
802 ;  Teele  v.  City  of  Boston,  IG-j  Mass.  89,  42  N.  E.  506 ;  Delaware 
&  Chesapeake  Steam  Towboat  Co.  v.  Starrs,  69  Pa.  36;  City  of  Ft. 
Wayne  v.  Coombs,  107  Ind.  75,  85,  7  N.  E.  743,  57  Am.  Rep.  82. 


§§  135-136)  EXPERT   OPINION    EVIDENCE.  229 

This  question  of  qualification  cannot  be  properly  postponed 
for  determination  by  the  cross-examination,  but  must  be  de- 
cided at  once  and  prior  to  the  witness  being  allowed  to  testi- 
fy.-* If  he  is  sufficiently  qualified,  then  he  may  give  his  knowl- 
edge and  opinion  for  the  benefit  of  the  jury.  There  is  no  strict 
rule  which  may  be  laid  down  as  to  what  is  sufficient  qualification 
for  an  expert  witness.  The  only  thing  which  can  be  said  is 
that  the  principle  of  helpfulness  to  the  jury  is  to  be  kept  in 
mind  as  the  guiding  principle.  It  is  of  no  use  to  put  before 
the  jury  opinion  which  is  not  founded  on  special  qualification, 
— qualification  which  is  not  possessed  by  the  jury,  which  gives 
to  its  possessor  an  authority  to  speak,  and  commands  for  him 
a  respectful  hearing  among  ordinary  business  men.-^  The 
qualification  is  that  which  is  recognized  in  the  ordinary  afl'airs 
of  life  as  sufficient  to  give  weight  to  an  opinion,  upon  which 
men  are  justified  in  relying  and  acting,  and  upon  which  they 
do  rely  and  act.  The  courts  are  governed  by  the  same  prin- 
ciples which  obtain  throughout  the  fabric  of  business  and  social 
life,  and  what  is  of  importance  in  the  one  place  has  the  same 

to  reach  a  result  from  the  facts  testified  to,  in  the  best  manner  pos- 
sible. Such  was  the  case  of  Trapp  v.  Druecker,  79  Wis.  638,  48  N. 
^Y.  G64.  where,  upon  the  question  of  what  the  plaintiff  was  entitled 
to  for  his  services  in  discovering  and  perfecting  a  patent,  the  court 
excluded  a  question  put  to  a  machinist  as  to  whether  a  person  could 
profitably  spend  1,700  hours  in  the  work. 

2  4  Dolan  V.  Herring-Hall-Marvin  Safe  Co.,  105  App.  Div.  366,  94 
N.  Y.  Supp.  241. 

2  5  Where  a  defendant  was  charged  with  having  unlawfully  out 
timber  belonging  to  the  United  States,  and  sought  to  prove  that  the 
land  where  the  timber  was  cut  was  mineral  land,  a  witness  who  was 
not  shown  to  have  any  knowledge  of  the  locality  from  which  the  tim- 
ber was  cut  cannot  give  his  opinion  that  the  ground  along  the  bed 
of  the  creek  nearest  to  the  place  where  the  timber  was  cut  contained 
gold  in  quantities  it  would  pay  to  abstract,  even  though  such  wit- 
ness was  a  miner  of  long  experience.  Special  qualification  is  neces- 
sary to  render  an  opinion  admissible.  Lynch  v.  United  States,  138 
Fed.  535,  71  C.   C.  A.  59. 

Where  the  defendant,  an  osteopath,  was  being  sued  for  negligent 
treatment  of  the  plaintiff,  it  was  held  that  an  expert  medical  wit- 
ness, but  not  himself  an  osteopath,  and  not  familiar  with  the  treat- 
ment prescribed  by  osteopathy,  could  not  give  his  opinion  as  to  such 
treatment,  not  being  sufficiently  qualified.  Grainger  v.  Still,  187  Mo. 
197,  85  S.  W.  1114,  70  L.  R.  A.  49. 


230  OPINION    EVIDENCE.  (Ch.  10 

importance  in  the  other.  If  a  man  wishes  to  buy  real  estate, 
he  is  apt  to  get  his  idea  of  value,  upon  which  he  will  act  in 
making  his  purchase,  from  those  who  make  it  a  business  to 
deal  in  real  estate.  If  he  wishes  to  buy  stocks  and  bonds,  or 
a  commercial  commodity,  a  very  important  element  in  fixing 
in  his  mind  what  the  value  of  such  property  may  be  is  the 
market  rate,  which  he  finds  in  his  newspaper,  or  learns  from 
his  broker.  Where  the  ordinary  business  man  goes  for  help 
upon  these  questions,  there  may  also  the  jury  go,  and  he  who 
is  qualified  to  give  an  opinion  in  the  one  case  may  also  give  an 
opinion  in  the  other.-® 


DISTINCTION    BETWEEN    "EXPERT    TESTIMONY    AS    TO 
TACTS"   AND    "EXPERT    OPINION." 

137.  "Expert  testimony  as  to  facts"  is  nothing  more  than  or- 

dinary  testimony  as  to  facts  given  by  witnesses  special- 
ly qualified  by   observation  and  experience   to   give  it. 

138.  "Expert  opinion"  is  real  opinion  evidence,  whicb  has  its 

value  in   some   special   qualification   of   the   witness   to 
form  an  opinion,  whicli  the  jury  does  not  possess. 

26  Clark  V.  Baird,  9  N.  Y.  183;  Swan  v.  Middlesex  County,  101 
Mass.  173,  177 ;  Cliquot's  Champagne,  3  Wall.  (U.  S.)  114,  141,  18  L. 
Ed.  116 ;  Sisson  v.  Railroad  Co.,  14  Mich.  489,  497,  90  Am.  Dec.  252 ; 
Hoxsle  V.  Lumber  Co.,  41  INlinn.  548,  551,  43  N.  W.  476.  In  Whitney 
V.  Thacher,  117  Mass.  523,  A.  sued  X.  for  breach  of  contract,  for  fail- 
ure to  receive  250  bales  of  gunny  bags  purchased  by  X.  and  deliv- 
ered at  New  York,  On  the  question  of  damages,  A.  called  two  bro- 
kers who  were  members  of  firms  having  houses  both  in  Boston  and 
New  York,  and  who  testified  that  they  were  familiar  with  the  mar- 
ket price  of  gunny  bags  in  New  York,  from  daily  price  current  lists 
and  returns  of  sales  daily  furnished  them  in  Boston  from  their  New 
York  houses.  Upon  objection  to  their  competency,  the  court  permit- 
ted them  to  testify  to  the  value  of  the  bags.  Wells,  J,,  says  (page 
527):  "It  is  not  necessary,  in  order  to  qualify  one  to  give  an  opin- 
ion as  to  values,  that  his  information  should  be  of  such  a  direct  char- 
acter as  would  make  it  competent  in  itself  as  ])rimary  evidence.  It 
is  the  experience  which  he  acijuires  in  the  ordinary  conduct  of  af- 
fairs, and  from  means  of  information  such  as  are  usually  relied  on 
by  men  engaged  in  business,  for  the  conduct  of  that  business,  which 
qualifies  him  to  testify." 

For  an  interesting  article  on  the  use  and  abuse  of  expert  testi- 
mony, see  11  Harvard  Law  Rev.  1G9. 


§§  137-138)      EXPERT  TESTIMONY  AND  EXPERT  OPINION.        231 

There  are  two  classes  of  witnesses  who  are  ordinarily  spoken 
of  as  experts.  The  one  embraces  those  persons  who,  by  rea- 
son of  special  opportunities  for  observation,  are  in  a  position 
to  judge  of  the  nature  and  effect  of  certain  matters  better  than 
persons  who  have  not  had  opportunity  for  like  observation. 
For  example,  one  who  has  had  opportunity  to  observe  the  run- 
ning of  trains  may  testify  as  to  the  speed  of  an  ordinary  train. ^'^ 
Such  witnesses  are  really  not  experts,  in  the  strict  sense  of  the 
term ;  they  are  only  specially  qualified  witnesses.  Any  person, 
having  been  placed  in  the  same  position,  and  having  had  the 
same  opportunities  for  observation,  could  give  like  testimony.^® 

The  other  class  embraces  those  witnesses  who,  by  reason  of 
a  special  course  of  training  or  education,  are  qualified  to  give 
an  opinion,  on  certain  matters,  of  a  peculiar  value, — of  a  value 
much  greater  than  the  opinion  of  a  person  not  specially  versed 
in  the  subject.-^  Any  one  may  have  an  opinion  in  respect  to 
the  same  matters,  but  the  opinion  would  be  of  no  value  to  the 
jury,  or  at  least  of  no  more  value  than  the  opinion  which  may 
be  formed  by  the  jurymen  themselves.  If  it  comes,  however, 
from  a  specially  trained  witness — one  who  has  been  accustomed 
to  judge  of  the  matters  under  consideration,  and  has  qualified 
himself  to  do  so — it  has  a  value  which  justifies  the  jury  in  fol- 

2  7  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Holloway.  71  Kan.  1,  80  Pac. 
31.  Or  as  to  how  far  a  common  headlight  will  light  vip  the  track. 
St.  Louis,  M.  &  S.  E.  Ry.  Co.  v.  Shannon,  76  Ark.  1G6,  88  S.  W.  851. 
A  person  familiar  with  the  sawmill  business  and  with  a  particular 
mill  may  testify  as  to  the  capacity  of  such  mill.  Fletcher  v.  Prest- 
wood.  143  Ala.   174.  38  South.  847. 

2  8  Upon  the  question  of  the  damages  occasioned  by  a  railroad  run- 
ning through  land,  it  is  held  that  one  acquainted  with  the  land,  know- 
ing its  capabilities  and  the  proper  mode  of  cultivating  it,  may  give 
an  opinion  as  to  the  increased  expense  in  cultivating  it  occasioned 
by  the  location  of  the  railroad  through  it.  Tucker  v.  Railroad,  118 
Mass.  546.  On  the  contrary,  brakemen  and  conductors  have  been 
held  not  to  be  so  qualified  as  to  render  tlieir  opinions  valuable  to  a 
jury  upon  the  question  of  the  coupling  of  cars.  Muldowney  v.  Rail- 
way Co.,  36  Iowa,  462.  In  Cain  v.  Uhlman,  20  Nova  Scot.  148,  1.53. 
the  distinction  mentioned  in  the  text  is  recognized  and  acted  on  in 
the  admission  of  certain  testimony  as  to  the  comparative  levels  of 
the  water  in  two  milldams,  which  was  held  to  be  testimony  as  to 
facts  merely. 

2  9  Grigsby  v.  Water  Co..  40  Cal.  396,  405. 


232  OPINION    EVIDENCE.  (Ch.  10 

lowing  it,  even  though  it  be  at  variance  with  their  own  opin- 
ions."" 

The  two  classes  of  expert  testimony  above  mentioned  have 
been  distinguished  by  being  called,  respectively,  expert  testi- 
mony as  to  facts,  and  expert  opinion.  Expert  testimony  as 
to  facts  really  is  no  exception  to  the  rule  which  excludes  opin- 
ion evidence.  It  is  convenient,  how^ever,  to  treat  this  class  of 
testimony  in  connection  with  expert  opinion. 

Some  Examples  of  Expert  Testimony  as  to  Facts. 

Among  the  subjects  upon  which  expert  testimony  of  this 
class  has  been  held  proper  is  that  of  the  foreign  law — using  the 
word  "foreign"  in  a  sense  relative  to  the  jurisdiction  in  which 
the  question  arises.  The  unwritten  foreign  law  may  be  proved 
by  so-called  experts  in  such  law;  that  is,  by  lawyers  or  judges 
practicing  under  or  administering  it.^^  Yet  what  is  given  in 
evidence  when  proof  of  this  kind  is  offered  is  facts,  and  not 

3  0  In  U.  S.  V.  -AIcGiue.  I  Ciut.  (U.  S.)  1,  Fed.  Cas.  No.  15,679.  the 
charge  to  the  juiy  in  respect  to  the  regard  to  be  paid  to  opiuious  of 
physicians  as  to  whether  the  accused  was  affected  with  delirium  tre- 
mens was  as  follows :  "And  here  I  may  remark,  gentlemen,  that  al- 
though in  general  witnesses  are  held  to  state  only  facts,  and  are  not 
allowed  to  give  their  opinions  in  a  court  of  law,  yet  this  rule  does 
not  exclude  the  opinions  of  those  whose  professions  and  studies  or 
occupations  are  supposed  to  have  rendered  them  peculiarly  skillful 
concerning  questions  w-hich  arise  in  finals,  and  which  belong  to  some 
particailar  calling  or  profession.  We  take  the  opinions  of  physicians 
in  this  case  for  the  same  reason  we  resort  to  them  in  our  own  cases 
out  of  court — because  they  are  believed  to  be  better  able  to  form  a 
correct  opinion  upon  a  subject  within  the  scope  of  their  studies  and 
practice  than  men  in  general,  and  therefore  better  than  those  who 
compose  your  panel." 

31  Ennis  v.  Smith,  14  How.  (U.  S.)  400,  426,  14  L.  Ed.  472;  Liver- 
pool &  G.  W.  S.  Co.  V.  rhenix  Ins.  Co.,  129  U.  S.  397,  44.5,  9  Sup.  Ct. 
469,  32  L.  Ed.  788;  ]\Iowry  v.  Chase,  100  Mass.  79.  86;  In  re  Rob- 
erts' Will,  8  Paige  (N.  Y.)  446 ;  Hall  v.  Costello,  48  N.  H.  170,  2  Am. 
Rep.  207;  Greasons  v.  Davis,  9  Iowa,  219.  In  Mowry  v.  Chase,  su 
pra,  A.  sued  X.  in  the  state  of  Massachusetts,  upon  a  judgment  pre- 
viously obtained  by  him  in  the  state  of  Rhode  Island.  X.  claimed 
that  there  was  no  such  service  on  him  as  gave  the  court  in  Rhode 
Island  jurisdiction  over  him.  A.  was  allowed  to  prove  by  lawyers 
and  judges  of  the  state  of  Rhode  Island  that  by  the  common  law  of 
that  state  the  service  was  sufficient.  The  court  say,  "The  evidence 
as  to  the  unwritten  law  of  the  state  was  properly  admitted,  such  law 
being  provable  as  a  fact." 


§§  137-138)       EXPERT  TESTIMONY  AND  EXPERT  OPINION.       233 

opinion.  This  is  recognized  in  most  of  the  cases  cited.  The 
interpretation  of  statutory  or  written  foreign  law  sanctioned 
by  practice  or  decisions  in  the  foreign  jurisdiction  constitutes 
a  part  of  the  unwritten  law,  and  may  be  proved  in  the  same 
way.^^ 

It  is  for  the  court  to  decide  what  the  foreign  law  is,  basing 
its  decision  upon  the  evidence  offered.^^  The  general  doctrine 
is  that,  if  proved  by  decisions,  the  decisions  must  be  those  of 
the  highest  court  in  the  jurisdiction.''*  It  has  been  held  that 
where  the  meaning  of  a  foreign  statute  is  to  be  determined, 
and  no  construction  has  been  placed  upon  the  statute  by  the 
courts  in  the  state  where  it  is  enacted,  the  opinions  of  attorneys 
as  to  the  meaning  and  testimony  as  to  the  consensus  of  opinion 
of  the  bench  and  bar  of  the  state  enacting  the  statute  are  inad- 
missible.^^ It  has  also  been  held  that  the  written  or  statute 
law  may  be  proved  by  experts,  who  may  testify  orally  without 
producing  an  exemplified  copy.^^ 

The  physiology  of  the  human  body,  and  the  condition  and 
operation  of  any  of  its  functions,  have  been  a  fruitful  field  for 
this  class  of  testimony.^^     Terms  peculiar  to  a  certain  trade 

32  Dyer  v.  Smith,  12  Conn.  384;    Bush  v.  Garner,  73  Ala.  162,  168. 

33  Christiansen  v.  Graver  Tank  Works.  223  111.  142,  79  N.  E.  97 ; 
Ferguson  v.  Clifford,  37  N.  H.  80;  Hooper  v.  Moore,  50  N.  C.  130. 
In  the  first  case  cited  the  proof  was  given  and  considered  by  the 
judge  out  of  the  presence  of  the  jury,  and  it  was  held  there  was 
no  error.  It  has  been  suggested  that,  where  the  evidence  is  conflict- 
ing, the  whole  matter  should  be  left  to  the  jury.  Note  20  Harvard 
Law  Rev.  575. 

34  See  Secombe  v.  Railroad  Co.,  23  Wall.  (U.  S.)  108,  23  L.  Ed.  67; 
Van  Matre  v.  Sankey,  148  111.  536,  36  N.  E.  628,  23  L.  R.  A.  665,  39 
Am.  St.  Rep.  196.  In  one  case  the  court  actually  refused  to  receive 
a  decision  of  an  inferior  court  as  representing  the  foreign  law. 
Schmaltz  v.  Manufacturing  Co.,  204  Pa.  1,  53  Atl.  522,  93  Am.  St. 
Rep.  782.  Unless  the  introduction  of  the  decision  of  the  lower  court 
was  accompanied  by  proof  that  there  was  no  decision  of  the  point 
by  a  higher  court  in  such  jurisdiction,  the  conclusion  in  the  case  cit- 
ed seems  proper. 

3  5  Clark  V.  Elkins,  38  Wash.  376,  80  Pac.  556,  107  Am.  St.  Rep. 
858. 

3  6  Sussex  Peerage  Case.  11  Clark  &  F.  85;  Barrows  v.  Downs,  9 
R.  I.  446,  11  Am.  Rep.  283;  Consolidated  Real  Estate  &  Fire  Ins. 
Go.  V.  Cashow,  41  Tdd.  60,  79. 

37  Young  V.  Makepeace,  103  Mass.  50,  where  it  was  held  that  an 


234  OPINION    EV^IDENCE.  (Ch.  10 

or  business,  or  having  a  special  significance,  which  would  not 
be  understood  by  the  ordinary  person,  may  be  explained  by 
witnesses  familiar  with  them.  This,  also,  will  be  seen  to  be 
but  ordinary  testimony  as  to  facts  by  specially  qualified  wit- 
nesses.^^ These  and  many  other  matters  requiring  special 
knowledge  for  their  proper  understanding  are  the  subject  of 
expert  testimony  as  to  facts. 

Expert  testimony  is  usually  thought  of  in  connection  with 
inquiry  as  to  technical  or  abstruse  scientific  questions — ques- 
tions requiring,  as  an  essential  to  intelligent  judgment,  a  spe- 
cial training  of  the  mind — and  this  is  the  field  in  which  the 
usefulness  of  such  testimony  is  most  often  felt.  But  there  are 
many  matters  relating  to  common,  everyday  affairs,  about 
which  witnesses  are  permitted  to  give  opinions.  The  matters 
here  referred  to  are  not  those  in  connection  with  which  wit- 
nesses are  permitted  to  give  their  "impressions."  Impressions, 
in  the  sense  in  which  they  are  admissible,  as  explained,  are 


ordinary  physician,  attending  at  the  birth  of  an  infant,  could  tes- 
tify as  to  whether  it  was  a  "full-time"  child.  See,  also,  Stephens 
V.  People,  4  Park.  Cr.  R.  (N.  Y.)  396. 

3  8  Term  "loaf  sugar,"  as  used  in  the  sugar  trade.  U.  S.  v.  Breed. 
1  Sumn.  (U.  S.)  159,  167,  Fed.  Cas.  No.  34,688.  "All  faults,"  as  used 
uix)n  a  sale  of  goods  at  auction.  Whitney  v.  Boardman,  118  Mass. 
242.  "Raceway,"  as  used  in  hydraulic  engineering.  Wilder  v.  De 
Cou,  26  Minn.  10,  18,  1  N.  W.  48.  But  it  has  been  held  that  wheth- 
er a  glove  contest  is  a  "prize  fight"  is  not  the  subject  of  expert  tes- 
timony. In  the  case  of  Seville  v.  State,  49  Ohio  St.  117.  30  N.  E. 
621,  15  L(.  R.  A.  516,  S.  was  indicted  for  engaging  in  a  prize  fight.  On 
the  trial,  S.  called  a  witness  who  testified  that  he  had  been  engaged 
in  52  prize  fights  and  glove  contests,  and  had  spent  six  years  in  ac- 
quiring the  art  of  boxing.  He  was  then  asked,  "What  are  the  rules 
which  apply  to  a  glove  contest,  and  also  to  a  prize  fight?"  Also, 
whether  the  combat  in  which  S.  was  engaged  (which  witness  testi- 
fied he  had  seen)  was  conducted  according  to  the  rules  of  a  glove 
contest,  or  tho^e  of  a  prize  fight.  Objections  to  both  questions  were 
made  and  sustained.  On  error,  the  Supreme  Court  held  that  the 
question  was  not  one  of  skill  or  science,  "but  one  within  the  com- 
prehension of  the  common  understanding  and  the  range  of  common 
knowledge,  which  the  juiy  could  decide,  upon  the  facts  proven,  as 
well  as  a  professional  pugilist."  Whether  land  is  mineral  land  has 
been  held  to  be  a  subject  upon  which  a  jui-y  is  competent  to  form 
an  opinion  without  the  help  of  an  expert.  Lynch  v.  U.  S.,  138  Fed. 
535,  71  C.  C.  A.  59. 


§§  137-138)       EXPERT  TESTIMONY  AND  EXPERT  OPINION.       235 

nothing  more  than  the  composite  expression  of  many  facts 
which  have  been  presented  to  the  senses.  What  is  here  meant 
is  opinion  evidence  pure  and  simple — opinion  evidence  with 
respect  to  matters  of  everyday  experience,  about  which  intel- 
ligent men  may  draw  reasonable  conclusions.  Even  in  this 
field  the  practice  of  allowing  opinion  evidence  has  made  some 
inroads.  In  the  varied  and  greatly  diversified  interests  which 
occupy  the  time  and  thought  of  men,  and  the  division  and  sub- 
division of  labor  which  result  therefrom,  we  find  an  influence 
which  tends  to  confine  the  ordinary  man  within  the  narrow 
limits  of  a  particular  line  of  duties,  connected  with  a  small  part 
of  some  branch  of  business,  with  the  inevitable  result  that  he 
becomes  peculiarly  qualified  to  reason  and  judge  as  to  matters 
in  his  particular  line,  and  remains  singularly  ignorant  of  things 
outside  of  it.  It  may  be  because  of  this  influence,  or  because  of 
something  else,  but  the  tendency  exists  to  regard  every  man  as 
an  expert  in  his  own  line.  The  courts  have  been  affected  to 
a  certain  extent  by  this  influence,  as  is  natural,  and  indeed 
quite  proper ;  and  if  it  does  not  wholly  account  for,  it  may  serve 
to  throw  light  upon,  the  cases  where  the  field  of  opinion  evi- 
dence has  been  so  widely  extended,^* 

3  9  Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Thompson,  75  Tex.  501,  503,  12  S. 
W.    742.     We  occasionally   find   in   the  cases  a  protest   against   the 
extension  of  this  kind  of  testimony,  as  in  O'Neil  v.  Railroad  Co.,  129 
N.  Y.  125,  29  N.  E.  84,  20  Am.  St.  Rep.  512.  where  a  qiiestion  was 
put  as  follows :    "Suppose  a  truck  weighing  nineteen  hundred  pounds, 
or   thereabouts,    carrying   a    load   of   thirty-six   hundred  pounds,    or 
thereabouts,  and  drawn  by  a  horse  weighing  twelve  to  thirteen  hun- 
dred pounds,  or  thereabouts,  and  that  the  horse  and  truck  were  being 
driven  up  Broadway,  and  were  at  the  time  within  one  hundred  feet 
of  Walker  street,  driving  north,  with  the  horse  on  a  walk,  and  the 
horse  being  a  gentle  and  tractable  animal,  under  full  control  at  the 
time ;  within  what  distance  could  such  a  truck,  under  such  circum- 
stances, be  stopped,  the  pavement  being  wet  by  sprinkling  carts?" 
And  Earl,  J.,  says  (page  129,  129  N.  Y.,  and  page  84,  29  N.  E.    [26 
Am.  St.  Rep.  512])  in  reference  to  it:     "This  belongs  to  a  class  of 
questions  not  much  to  be  encouraged.     The  answer  to  such  a  ques- 
tion can  be  of  little  service  to  jurors.     They  are  generally  acquaint- 
ed with  such  common  things  as  trucks  and  horses,  and  the  power, 
actions,   and  capacity  of  horses,   which,  particularly  in  the  city  of 
New  York  are  constantly  open  to  observation.     Yet  we  cannot  say 
that  the  expert  witness  did  not  know  more  about  the  subject  of  the 
inquiry  than  ordinary  jurors  can  generally  be   supposed  to   know. 


236  OPINION    EVIDENCE.  (Ch.  10 


MATTERS    FORMING    SUBJECT    OF    EXPERT    OPINION. 

139.  Expert  opinion  is  admissible  upon  any  subject  ivbich, 
in  tbe  judgment  of  the  court,  will  be  made  clearer  by 
its  introduction.40 

In  accordance  with  the  principles  already  explained,  upon 
which  expert  opinion  is  held  admissible,  we  find  the  courts  ad- 
mitting the  testimony  in  a  great  variety  of  cases,  and  where 
almost  every  trade,  profession,  or  art  is  concerned.*^  The 
testimony,  in  some  of  its  particular  aspects — those  relating  to 
values,  insanity,  and  handwriting — is  separately  noticed  in  the 

The  question  is  barely  competent,  and  probably  was  not  harmful; 
and  the  judgment  should  not,  therefore,  be  reversed  because  the 
judge  allowed  it  to  be  answered."  In  Clinton  v.  Howard,  42  Conn. 
294,  a  witness  accustomed  to  drive  and  handle  horses  was  allowed  to 
state  his  opinion  as  to  whether  a  pile  of  stones  of  certain  size  and 
chai'acter,  placed  in  the  road,  was  calculated  to  frighten  a  gentle 
horse.  See,  also,  Armstrong  v.  Railway  Co.,  4,5  Minn.  85,  47  N.  W. 
^''!),  referred  to  in  note,  ante,  p.  224.  In  Baltimore  &  R.  Turnpike 
Road  V.  State,  71  Md.  573,  584,  18  Atl.  884,  It  was  held  that  "wheth- 
er a  four-horse  wagon  loaded  with  wood  is  calculated  to  frighten  a 
well-broken  horse"  was  not  a  subject  of  expert  testimony,  but  "was 
a  matter  in  regard  to  which  each  juror  was  quite  as  competent  to 
form  an  opinion  as  the  witness  himself."  The  case  of  Welch  v.  In- 
surance Co.,  23  W.  Va.  288,  presents  facts  where  it  would  seem  that 
the  opinion  evidence  held  to  have  been  erroneously  admitted  by  the 
trial  court  might  well  have  been  helpful.  The  question  was  as  to 
the  quantity  of  wool  in  a  building  destroyed  by  fire.  The  plaintiff 
claimed  more  than  the  insurance  company  was  willing  to  allow.  The 
insurance  company  offered  as  an  expert  witness  one  who  had,  as  an 
adjuster,  been  familiar  with  fires,  and  their  effect  on  different  kinds 
of  merchandise,  and  asked  him  the  question,  "If  a  frame  building,  18 
by  22  feet,  and  a  stoiy  and  a  half  high,  containing  10,000  or  12,000 
pounds  of  wool,  should  burn,  state  whether  or  not,  in  your  opinion, 
the  wool  would  be  destroyed?" 

40  Kershaw  v.  Wright,  115  Mass.  361 ;  Ferguson  v.  Hubbell,  97  N. 
T.  513,  49  Am.  Rep.  544. 

41  Rice  V.  Wallowa  County,  46  Or.  574,  81  Pac.  358,  the  subject  of 
expert  testimony  here  was  how  long  tamarack  timbers  will  remain 
sound  while  in  contact  with  the  ground ;  whether  switch  frogs  are 
dangerous  when  unblocked,  Schroeder  v.  Railway  Co.,  128  Iowa,  365, 
103  N.  W.  985;  as  to  the  appliances  required  for  the  careful  opera- 
tion of  a  railroad,  Pittsburgh,  S.  &  N.  Ry.  Co.  v.  Lamphere,  137  Fed. 
20,  69  C.  C.  A.  542. 


§  139)  MATTERS   OF    EXPERT    OPINION.  237 

following  paragraphs.  In  a  general  way,  it  will  be  seen  from 
the  cases  cited  in  the  notes  that  the  ranks  of  expert  witnesses 
are  recruited  from  physicians,  surgeons,  chemists,  engineers, 
lawyers,  real-estate  men,  and,  indeed,  almost  every  class  of 
men  engaged  in  pursuits  requiring  special  experience  or  educa- 
tion on  the  part  of  those  carrying  them  on.*^ 

ScientiHc  and  Medical  Books  in  Relation  to  Expert  Testimony. 
The  opinion  of  an  expert  in  reference  to  certain  matters  of 
science,  especially  in  the  line  of  medicine  or  chemistry,  may  be 
based  upon  an  intimate  knowledge  of  and  familiarity  with  the 
standard  authorities  upon  those  subjects,  as  well  as  upon  ex- 
perimental facts.  In  this  case  it  is  proper  to  show  that  the 
expert  has  this  knowledge  and  familiarity.  But  the  books 
themselves  are  not  admissible  as  expert  evidence,  though  thev 
are  sometimes  used  to  contradict  a  witness  who  has  referred 
to  them  as  a  basis  for  an  opinion. -^^^     In  some  jurisdictions, 

42  Physicians  and  surgeons:  People  v.  Harris,  136  N.  Y.  423,  434, 
33  N.  E.  65;  Com.  v.  Piper,  120  Mass.  185;  Perkins  v.  Railroad,  44 
N.  H.  223;  State  v.  Porter,  34  Iowa,  131.  134;  Jones  v.  White,  11 
Humph.  (Tenn.)  2G8 ;  State  v.  Sheets,  89  N.  C.  543 ;  Hook  v.  Stovall, 
26  Ga.  704,  714.  Veterinary  surgeons :  People  v.  Theobald,  92  Him. 
182,  36  N.  Y.  Supp.  498.  Chemists:  People  v.  Gonzalez.  35  X.  Y. 
49,  61;  State  v.  Knight,  43  Me.  11,  131.  Engineers  and  mechanics: 
McCaslin  Mach.  Co.  v.  McCaslin,  90  Hun,  388,  35  N.  Y.  Supp.  746: 
Joyce  V.  Parkhurst,  150  IMass.  243,  22  N.  E.  899 ;  Moulton  v.  :\IcOwen, 
103  Mass.  587 ;  Buffum  v.  Harris.  5  R.  I.  243.  Lawyers  and  judges : 
Mowry  v.  Chase,  100  IMass.  79 ;  Williams  v.  Brown,  28  Ohio  St.  547 ; 
Thompson  v.  Boyle.  85  Pa.  477 ;  Allis  v.  Day,  14  Minn.  516  (Gil.  388). 
Carpejiter  and  builder,  as  to  comparative  strength  of  different  kinds 
of  timber :  Knhn  v.  Railroad  Co.,  92  Plun,  74,  36  N.  Y.  Supp.  339. 
Person  familiar  with  floating  logs:  Dean  v.  McLean.  48  Yt.  412,  21 
Am.  Rep.  130.  Pilot,  transportation :  Line  v.  Hope.  95  U.  S.  297,  24 
L.  Ed.  477.  Horse  dealers:  Miller  v.  Smith,  112  Mass.  470;  More- 
land  V.  :Mitchell  Co..  40  Iowa,  394. 

43  lu  City  of  Bloomington  v.  Shrock,  110  111.  219,  51  Am.  Rep.  679, 
a  witness  gave  his  own  opinion,  without  basing  it  on  any  authority. 
On  cross-examination  counsel  was  allowed  to  read  extracts  from  cer- 
tain medical  authorities,  and  ask  the  witness  whether  he  agreed  with 
the  views  expressed.  This  was  held  to  be  erroneous,  as  the  books 
could  not  be  used  to  get  in  expert  opinion  evidence  of  a  contrary  na- 
ture from  that  expressed  by  the  witness,  unless  for  the  purpose  of 
contradicting  him.  Fox  v.  Color  Works,  84  Mich.  676.  681,  48  N.  W. 
203 ;    Tucker  v.  Donald.  60  Miss.  460,  45  Am.  Rep.  416 :    City  of  Ri- 


238  OPINION    EVIDENCE.  (Ch.  10 

standard  scientific  and  historical  works  are  made  by  statute  ad- 
missible as  presumptive  evidence  of  the  facts  they  contain.** 
In  such  jurisdictions  it  is  still  held  that  knowledge  and  fa- 
miliarity with  such  works  and  their  contents  as  the  grounds 
of,  or  to  contradict,  opinion  evidence,  are  admissible  without 
producing  the  works  themselves. "'^ 

Expert  Opinion — Hozv  Contradicted. 

Expert  opinion  evidence  can  be  met  ordinarily  only  by  con- 
trary opinions  of  other  experts.  Where,  however,  the  expert 
opinion  negatives  the  possibility  of  the  existence  of  a  thing,  or 
the  doing  or  happening  of  an  act,  there  the  fact  of  the  actual 
existence  of  such  thing,  or  the  actual  doing  or  happening  of 
the  act,  is  material  to  show  the  incorrectness  of  the  opinion.*® 
So,  also,  where  the  opinion  affirms  the  possibility  of  the  hap- 
pening of  an  act,  the  expert  giving  the  opinion  may  cite  par- 
ticular instances  within  his  own  knowledge  in  support  of  his 
opinion.*^  This  is,  in  substance,  giving  one  of  his  reasons  for 
his  opinion. 

pon  V.  Bittel,  30  Wis.  614.  But  see  Western  Assurance  Co.  v.  Mohl- 
man  (2d  Circuit.  Oct.  11,  1897)  S3  Fed.  811,  28  C.  C.  A.  1.57.  40  L.  R. 
A.  561,  where  statements  as  to  strength  of  timber  contained  in  sci- 
entific boolis  were  admitted.  Judge  Lacombe  states  the  reason  as 
follows:  "Under  the  rule  contended  for,  this  valuable  information 
would  be  available  for  the  use  of  a  court  of  justice  so  long  as  the 
men  who  made  the  tests  and  prepared  the  tabulations  were  living 
and  producible;  but,  after  their  death  or  disappearance,  the  infor- 
mation they  had  gathered  would  be  lost  to  the  court,  although  avail- 
able for  every  one  else  in  the  community.  We  feel,  therefore,  no  hes- 
itancy in  so  modifying  the  general  rule  as  to  hold  that,  where  the 
scientific  work  containing  them  is  concededly  recognized  as  a  stand- 
ard authority  by  the  profession,  statistics  of  mechanical  experiments 
and  tabulations  of  the  results  thereof  may  be  read  in  evidence  by 
an  expert  wirness  in  suijport  of  his  professional  opinion,  when  such 
statistics  and  tabulations  are  generally  relied  upon  by  experts  in  the 
particular  field  of  the  mechanical  arts  with  which  they  are  concern- 
ed." For  an  interesting  comment  on  this  case,  see  11  Harvard  Law 
Rev.  p.  332. 

4  4  Sioux  City  &  P.  R.  Co.  v.  Finlayson,  16  Neb.  578,  20  N.  W.  860, 
49  Am.  Rep.  724. 

4  5  Brodhead  v.   Wiltse,  35  Iowa,  429. 

4  6  Com.  v.  Leach,  156  Mass.  99.  30  N.  E.  163. 

47  Donahoe  v.  Railroad  Co.,  159  Mass.  125.  34  N.  E.  87. 


§  139)  MATTERS   OF    EXPERT   OPINION.  239 

Evidentiary  Facts  Forming  Basis  of  Expert  Opinion. 

The  opinion  of  an  expert  must  either  be  based  upon  admit- 
ted facts,  about  which  there  is  no  dispute,  or  upon  assumed 
facts,  put  for  the  purpose  of  obtaining  an  opinion,  and  upon 
the  truth  of  which  the  jury  may  pass.  If  the  jury  determines 
the  facts  to  be  as  assumed,  the  opinion  will  come  into  active 
operation  as  evidence.  If  they  find  they  are  not  proved  as 
assumed,  the  opinion  will  have  no  influence  with  them. 

An  expert  may  be  a  witness  to  the  facts,  if  they  are  within 
his  personal  knowledge,  and  he  may  also  testify  to  his  opinion, 
based  upon  the  facts  as  testified  to  by  him."'^"  When  he  is  ex- 
amined as  an  expert,  it  must,  however,  appear  what  his  opin- 
ion is  based  upon.  He  cannot  give  an  opinion  based  upon  the 
facts  as  he  believes  them  to  be,  unless  they  have  been  placed 
before  the  jury  so  that  they  will  understand  at  the  time  the 
opinion  is  given  upon  what  state  of  facts  it  is  based.*® 
Distinction  Betzveen  Evidentiary  Facts  and  Facts  Which  Form 

the  Ground  of  Opinion. 

The  evidentiary  facts  upon  which  an  expert  is  asked  to  give 
an  opinion  as  to  a  main  fact  in  issue  must  be  distinguished  from 
facts,  or,  more  properlv  speaking,  reasons,  which  form  the 
ground  for  his  opinion. '  The  latter  he  is  always  permitted  to 
state  in  explanation  of  his  opinion.^"*    With  the  former,  in  his 

4  8  Faber  v.  Coal  Co..  124  AVis.  554,  102  N.  W.  1049.  In  this  case 
physicians,  testif.ving  as  to  the  nature  of  injuries  suffered  by  plain- 
tiff, were  also  asked  whether  such  injuries  were  likely  to  result  in 
recurrent  troubles,  or  were  apt  to  affect  other  organs  injuriously. 
It  will  be  seen  that  in  answering  these  questions  the  witnesses  as- 
siuned  the  character  of  experts,  although  previously  testifying  as 
witnesses  to  facts. 

4  9  Heald  v.  Thing,  45  Me.  392. 

50  In  Eidt  V.  Cutter,  127  Mass.  522,  the  action  was  by  A.  v.  X.  for 
injuries  caused  to  A.'s  house  and  fence  by  the  fumes,  vapors,  and 
gases  escaping  from  X.'s  copperas  works,  and  discoloring  the  paint 
on  the  house  and  fence.  A.  introduced  experts,  who  testified  that 
the  condition  of  the  house  and  fence  could  be,  and  was,  in  their  opin- 
ion, brought  about  by  the  said  fumes.  The  witnesses  were  permit- 
ted' to  give  as  the  reasons  for  their  opinions  an  account  of  certain 
experiments  made  by  them,  which,  under  similar  conditions,  pro- 
duced similar  results.  In  McLeary  v.  Norment,  84  N.  C.  235.  the 
question  as  to  the  statement  of  the  grounds  of  a  witness'  opinion  as 
to  sanity  came  up  in  a  peculiar  way.    The  suit  was  by  A.  to  set  aside 


240  OPINION   EVIDENCE.  (Ch.  10 

expert  capacity,  he  has  nothing  to  do,  except  to  assume  them 
as  they  are  stated  to  him  hypothetically,  or  as  they  are  called 
to  his  attention  as  having  been  previously  testified  to.  He  is 
not  to  give  his  opinion  as  to  their  truth  or  falsity.^^ 


HYPOTHETICAI4    QUESTIONS. 

140.    The    hypothetical    question    is    the    most    approved    form 
of    calling   for   the   opinion   of   an    expert   Avitness. 

In  the  examination  of  those  witnesses  w^ho  are  called  as  ex- 
perts, pure  and  simple,  and  who  have  no  personal  knowledge 
of  the  facts,  the  most  generally  accepted  form  of  question  is 
to  state  certain  facts,  as  assumed,  and  ask  the  witness  for  his 
opinion  thereon. ^^     The  advantage  in  this  form  of  question  is 

a  conveyance  made  by  her  to  X.  on  the  ground  of  mental  incapacity 
at  the  time  the  deed  was  executed.  X.  having  died,  the  suit  was 
against  his  heirs.  A  niece  of  A.  testified  to  A.'s  want  of  capacity  to 
make  a  deed,  and  stated  that  her  opinion  was  formed  from  conver- 
sations and  communications  between  A.  and  herself.  It  was  pro- 
posed to  show  what  these  conversations  were,  but  they  were  object- 
ed to  and  excluded.  The  higher  court  held  that  they  should  have 
been  admitted,  not  for  the  purpose  of  showing  the  truth  of  the  things 
stated,  but  as  showing  the  grounds  upon  which  the  witness'  opinion 
was  based.  It  was  also  held  that  they  were  not  within  the  prohi- 
bition of  a  statute  by  which  a  living  witness  is  not  permitted  to  tes- 
tify to  a  conversation  when  the  other  party  to  it  is  dead  or  insane. 
The  conversations,  so  far  as  they  were  irrational,  were  in  themselves 
evidence  of  insanity,  and  were  really  admissible,  even  though  the 
witness  had  stated  no  opinion.  In  fact,  they  would  ordinarily  have 
been  admitted  first,  and  the  witness  then  allowed  to  give  her  opin- 
ion upon  them. 

51  Butler  V.  Insurance  Co.,  4.5  Iowa,  93,  98. 

52  Miller  v.  Smith,  112  Mass.  470,  475;  Walker  v.  Rogers,  24  Md. 
237,  243;  Spear  v.  Richardson,  37  N.  H.  23,  34;  Louisville,  N.  A. 
&  C.  Ry.  Co.  V.  Wood,  113  Ind.  544,  14  N.  E.  572,  and  16  N.  E.  197 ; 
Southera  Bell  Tel.  &  Tel.  Co.  v.  .Jordan,  S7  Ga.  G9,  72,  13  S.  E.  202; 
Hall  V.  Rankin,  87  Iowa,  201,  54  N.  W.  217.  In  Ilardiman  v.  Brown, 
1G2  Mass.  585,  note,  39  N.  E.  192,  a  hypothetical  question  as  put  to 
a  practicing  physician  of  long  experience  is  set  out  in  full.  It  is 
hero  printed  as  furnishing  an  illustration  of  the  manner  in  which  such 
questions  are  put.  The  subject  of  the  inquiry  was  the  cause  of  an 
ilhicss  wliich  resulted  in  the  death  of  n  child.  The  question  was:- 
"Suppose  a  girl  between  seven  imd  eight  \  i^'ITub  of  age,  who  had  always 


§  140)  HYPOTHETICAL   QUESTIONS.  241 

that  it  gets  before  the  jury  exactly  the  facts  upon  which  the 
opinion  is  founded.  Where  an  expert  witness  has  heard  the 
evidence,  it  might  be  thought  that  it  would  be  simpler  to  ask 
his  opinion  upon  the  facts  as  proved,  but  this  would  be  objec- 
tionable, for  the  reason  that  the  jury  alone  are  to  determine 
what  facts  are  proved.  To  leave  it  to  the  witness  to  do  this, 
and  to  express  his  opinion  upon  such  facts  as  he  may  deem 
proved,  is  objectionable,  for  the  reason  that  in  the  minds  of 
the  jury  a  different  state  of  facts  may  seem  to  have  been  proved 
from  the  facts  which  are  in  the  mind  of  the  witness.  Under 
these  circumstances,  the  jury  cannot  tell  what  weight  the  opin- 
ion is  entitled  to. 

The  statement  of  the  facts  constituting  the  hypothetical  ques- 
tion must  comprise  those  facts  upon  which  an  opinion  is  want- 
ed, stated  as  the  party  putting  the  question  conceives  them  to 
have  been  proved  by  the  evidence. ^^    The  nearer  they  come  to 


been  in  good  health,  on  the  9th  of  January,  1887,  to  have  been  run 
over  by  a  runaway  horse,  with  sleigh  attached,  to  have  been  knocked 
insensible  to  the  ground,  the  horse  and  sleigh  passing  over  her,  in- 
flicting three  cuts,  one  upon  the  top,  one  upon  the  side,  and  one  up- 
on the  back  of  her  head,  from  the  hoofs  of  the  horse  or  otherwise; 
that  she  thereafter  was  attacked  with  vomiting,  and  was  confined 
to  the  house  for  two  months,  suffering  great  pain  in  the  back  and 
front  of  the  head;  that  at  intervals  thereafter,  increasing  in  fre- 
quency and  intensity  till  the  date  of  her  death,  on  May  18,  1892,  she 
was  attacked  with  violent  pains  in  the  head,  accompanied  with  vom- 
iting; that  in  the  last  few  months  of  her  life  her  sight  gradually 
failed,  and  she  became  totally  blind ;  that  her  legs  became  unsteady, 
and  her  control  over  them  uncertain ;  that  she  suffered  almost  con- 
tinually great  pain  in  the  front  and  back  of  her  head;  that  after 
her  death,  on  examination,  it  was  found  that  she  had  one  or  more 
tumors  of  the  cerebellum,  or  at  the  base  of  the  brain — what,  in  your 
opinion,  was  the  exciting  cause  of  the  illness  from  which  she  suffered 
from  January  9,  1887,  the  date  of  the  accident,  till  the  date  of  her 
death,   May   18,   1892?" 

5  3  People  V.  Tuczkewitz,  149  N.  Y.  240,  43  N.  E.  548;  People  v. 
Harris,  136  N.  Y.  423,  453,  33  N.  E.  65 ;  In  re  Will  of  Norman,  72 
Iowa,  84,  33  N.  W.  374 ;  Abbot  v.  Heath,  84  Wis.  314,  319,  54  N.  W. 
574.  In  Cowley  v.  People,  83  N.  Y.  464,  38  Aui.  Rep.  464,  Folger, 
C.  J.,  says  (page  470) :  "The  claim  is  that  a  hypothetical  question 
may  not  be  put  to  an  expert  unless  it  states  the  facts  as  they  exist. 
It  is  manifest,  if  this  is  the  rule,  that  in  a  trial  whei-e  there  is  a 
dispute  as  to  the  facts,  which  can  be  settled  only  by  the  jury,  there 

m'kelv.ev.(2d  ED.)— 16 


242  OPINION    EVIDENCE.  (Ch.  10 

the  facts  as  they  appear  to  the  jury,  the  greater  the  weight 
which  the  witness'  opinion  will  have.  It  is  not  necessary  that 
the  question  include  the  substance  of  all  the  testimony  given. ^* 
All  that  is  required  is  that  the  question  shall  be  a  fair  state- 
ment of  the  salient  facts  upon  which  an  opinion  is  wanted. 
The  prevailing  doctrine  is  that  the  witness  cannot  be  asked 
his  opinion  upon  the  evidence  in  the  case  as  he  has  heard  it 
given.^^    This  would  be  leaving  to  him  to  determine  for  him- 

would  be  no  room  for  a  hypothetical  question.  Tlie  very  meaning 
of  the  word  is  that  it  supposes — assumes — something  for  the  time  be- 
ing. Each  side  in  an  issue  of  fact  has  its  theory  of  what  is  the  true 
state  of  facts,  and  assumes  that  it  can  prove  it  to  be  so  to  the  sat- 
isfaction of  the  jui-y,  and,  so  assuming,  shapes  hypothetical  questions 
accordingly.     And  such  is  the  correct,  practice." 

54  Stearns  v.  Field,  90  N.  Y.  640 ;  Louisville,  N.  A.  &  C.  Ry.  Co. 
V.  Wood,  113  Ind.  544,  554,  14  N.  E.  572;  State  v.  Hayden,  51  Vt. 
296 ;  Hall  v.  Rankin,  87  Iowa,  261,  54  N.  W.  217 ;  Bowen  v.  City  of 
Huntington,  35  W.  Va.  682,  689,  14  S.  E.  217. 

5  5  In  reference  to  a  question  of  this  sort,  the  Court  of  Appeals  in 
New  York  says  (People  v.  McElvaine,  121  N.  Y.  250,  255,  24  N.  B. 
465,  466,  80  Am.  St.  Rep.  820) :  "We  cannot  doubt  but  that  the  ques- 
tion was  improper.  The  witness  was  thus  permitted  to  take  into 
consideration  all  the  evidence  in  the  case  given  upon  a  long  trial 
extending  over  nine  days,  and,  upon  so  much  of  it  as  he  could  recol- 
lect, determine  for  himself  the  credibility  of  the  witnesses,  the  prob- 
ability or  improbability  of  their  statements,  and,  drawing  therefrom 
such  inferences  as,  in  his  judgment,  were  warranted  by  it,  pronounce 
upon  the  sanity  or  insanity  of  the  defendant.  It  cannot  be  questioned 
but  that  the  witness  was  by  the  question  put  in  the  place  of  the  jury, 
and  was  allowed  to  determine  upon  his  own  judgment  what  their  ver- 
dict ought  to  be  in  the  case."  See  extracts  from  early  cases  cited  in 
Thayer,  Cas.  Ev.  (2d  Ed.)  p.  717.  But  it  has  been  held  that,  where 
the  witness  has  heard  the  testimony,  instead  of  repeating  it  in  the 
hypothetical  question  he  may  be  asked  his  opinion,  assuming  the  facts 
testified  to  to  be  true.  When  the  facts  involved  are  simple,  and  have 
been  given  immediately  before  the  expert  is  put  on  the  stand,  there 
may  not  be  any  objection  to  this  form  of  putting  a  hypothetical  ques- 
tion ;  but,  if  they  are  complicated,  and  testitied  to  by  many  witness- 
es, it  is  open  to  the  objection  that  the  witness  may  not  remember 
all  the  facts,  or  at  least  not  remember  the  facts  as  remembered  by 
the  jury.  See  Wright  v.  Hardy,  22  Wis.  348.  The  courts  sometimes 
go  to  the  extent  of  allowing  the  opinion  of  the  witness  to  be  asked 
upon  tlie  evidence  introduced.  Thus,  in  Schneider  v.  Manning,  121 
111.  377,  387,  12  N.  E.  267,  271,  the  question  was:  "Having  heard  that 
evidence  on  the  part  of  the  contestants,  state  whether  or  not,  in  your 
opinion,  from  a  medical  standpoint,  from  that  evidence,  Hugh  Mc- 


§  141)  DAMAGES.  243 

self  what  facts  he  would  consider  proved.  On  these  facts  he 
would  base  his  opinion,  and  give  what,  in  substance,  would  be 
a  verdict  on  the  evidence,  which  would  be  highly  objectionable. 
On  the  contrary,  if  he  be  asked  for  his  opinion,  assuming  cer- 
tain facts  to  be  true,  it  is  left  entirely  with  the  jury  to  deter- 
mine w'hether  such  facts  are  proved.  If  the  jury  believe  the 
facts  assumed,  they  may  then  make  use  of  the  opinion  to  aid 
them  in  reaching  a  correct  result.  When  the  facts  are  not  in 
dispute,  it  has  been  held  that  that  question  based  on  the  evi- 
dence in  the  case  is  proper.^® 


DAMAGES  AS  THE  SUBJECT  OF  OPINION  EVIDENCE. 

141.    The   question   of  damages  is   for   the  jury  to   determine, 
and  is   not   properly   the    subject   of   expert  testimony. 

In  the  ordinary  case,  where  the  plaintiff  seeks  compensation 
in  damages  either  for  breach  of  contract,  or  for  an  injury  re- 
sulting from  some  wrong,  the  question  of  the  amount  to  which 
he  is  entitled  is  the  final  question  which  the  jury  have  to  pass 
upon.  It  is  the  thing  wdiich  is  peculiarly  wathin  their  province, 
and  the  thing  in  reference  to  which  they  must  rely  exclusively 
upon  their  own  opinion. ^^     There  is  no  trade  or  profession 

Glennon  was  of  sound  or  unsouud  mind  on  September  6,  1879."  A 
similar  question  was  allowed  in  Hand  v.  Inhabitants  of  Brookline, 
126  Mass.  324:  Jones  v.  Railway  Co.,  43  Minn.  279,  45  N.  W.  444; 
Seymour  v.  Fellows,  77  N.  T.  178.  In  Gates  v.  Fleischer,  67  Wis. 
504,  30  N.  W.  674.  the  question  was  based  partly  on  facts  stated,  and 
reference  was  made  to  the  testimony  heard  by  the  witness  for  the 
balance  of  facts. 

56  McNaghten's  Case,  10  Clark  &  F.  200.  211 ;  Hunt  v.  Gaslight 
Co.,  8  Allen  (Mass.)  169-172,  85  Am.  Dec.  697;  Tingley  v.  Cowgill, 
48  Mo.  291,  298;    Page  v.  State,  61  Ala.  16. 

5'  In  Lincoln  v.  Railroad  Co..  23  Wend.  (N.  Y.)  425,  A.  sued  X. 
for  damages  for  injuries  incurred  while  he  was  a  passenger  on  X.'s 
cars.  Upon  the  question  of  amount  of  damages  A.  showed  that  he 
was  a  member  of  a  mercantile  firm  carrying  on  a  large  business,  and 
that  as  the  senior  partner  he  controlled  the  firm's  affairs ;  that  the 
injury  kept  him  from  attending  to  them  during  the  busiest  season, 
and  then  put  in  the  opinions  of  other  business  men  as  to  the  amount 
of  damages  plaintiff  must  have  sustained  by  reason  of  his  absence. 
This  was  held  erroneous.     The  court  say  (page  434) :    "Where  men 


244  OPINION    EVIDENCE.  (Ch.  10 

which  furnishes  a  skill  or  knowledge  which  can  better  arrive  at 
a  fair  conclusion  than  the  experience  and  knowdedge  of  twelve 
citizens  of  average  intelligence ;  at  least,  this  is  the  theory  of 
the  jury  system.  There  are  questions  of  damages,  dependent, 
by  some  rule  of  law,  upon  subsidiary  questions  of  value  of 
property,  and  upon  these  latter  questions  persons  specially 
qualified  are  often  called  upon  for  opinions,  so  that  opinions  of 
experts  as  to  values  may  furnish  the  basis  upon  which  the  jury 
arrives  at  a  measure  of  damages.  In  thus  giving  an  opinon 
as  to  value,  which  value,  by  rule  of  law,  is  imposed  upon  the 
jury  as  a  measure  of  damages,  a  witness  is  in  substance,  if 
not  in  form,  speaking  to  the  question  of  damages.  Cases  where 
the  damage  consists  in  the  plaintiff  being  deprived  of  property 
either  by  breach  of  contract  or  tort  may  involve  a  determina- 
tion of  the  value  of  the  property  in  order  to  fix  the  damages. 
Expert  opinion  is  in  such  case  admitted. 


58 


of  science  or  skill  have  been  allowed  to  express  their  opinion  upon 
a  given  or  admitted  state  of  facts,  if  of  equal  standing  or  intelli- 
gence, there  ma.v  be  expected  something  like  general  concurrence. 
*  *  *  In  the  case  before  us  no  such  accuracy  is  attainable,  or  can 
be  predicated  upon  the  facts  on  which  the  opinions  are  expressed. 
There  may  be  a  tolerable  conjecture  of  the  amount  of  damage,  and 
merchants  in  the  same  line  of  business  with  the  plaintiff,  and  resid- 
ing in  his  vicinity,  might  carry  it  nearer  to  the  truth  than  others ; 
but  their  opniions  can  rise  no  higher  than  mere  conjecture.  *  *  * 
Even  with  the  jury  the  damage  beyond  the  actual  expenses  can  at 
best  rise  but  little  above  conjecture.  *  *  *  The  most  they  can 
do  Is  to  bring  to  the  discharge  of  their  duties  a  careful  and  diligent 
consideration  of  the  particular  case,  a  knowledge  and  experience  of 
the  general  condition  and  business  affairs  of  mankind,  to  which  all 
are  more  or  less  subject,  a  sound  and  enlightened  judgment,  and  hon- 
est desire  to  arrive  at  truth  and  justice  between  the  parties.  No 
more  can  be  expected,  no  less  justified.  The  result  will  usually  be 
an  approximation  to  reasonable  indemnity,  as  near  as  the  imperfec- 
tions of  human  tribunals  will  admit."  See,  also,  Morehouse  v.  INIath- 
ews,  2  N.  Y.  514;    Old  v.  Keener,  22  Olo.  6,  43  Pac.  127. 

5  8  In  Vandine  v.  Burpee,  13  INIetc.  (Mass.)  28S,  46  Am.  Dec.  733, 
Dewey,  J.,  says  (page  291  of  13  Mete.  [46  Am.  Dec.  733]) :  "It  seems 
to  us  that  it  would  be  impracticable  to  dispense  with  this  species  of 
testimony  in  many  actions  of  trover  for  personal  property,  where 
no  detail  of  facts  could  adequately  inform  the  jury  of  the  value  of 
the  articles.  The  opinion  of  a  witness  as  to  the  value  of  a  horse  is 
much  more  satisfactory  evidence  than  a  detailed  statement  of  his 
size,  color,  age,  etc.,  to  give  the  jury  the  requisite  information  to  en- 


§  141)  DAMAGES.  245 

Cases  where  the  loss  consists  in  an  injury  to  property  not 
amounting  to  a  total  destruction  or  deprivation  present  greater 
difficulties.  Here  the  question  of  damages  involves  the  differ- 
ence between  value  before  and  after  the  injury.  The  courts,  to 
preserve  the  letter  of  the  rule,  refuse  to  allow  expert  opinion 
testimony  as  to  what  the  damage  is,  but  insist  that  it  shall  be 
confined  to  what  the  respective  values  were  before  and  after 
the  injury,  leaving  it  to  the  jury  to  perform  the  somewhat 
formal  task  of  the  sum  in  subtraction.^^ 

able  them  to  assess  damages  for  the  conversion  of  such  a  horse." 
Miller  v.  Smith,  112  Mass.  470,  in  which  Gray,  J.,  says  (page  475) : 
"Whenever  the  value  of  any  peculiar  kind  of  property,  which  may 
not  be  presumed  to  be  within  the  actual  knowledge  of  all  jurors,  is 
in  issue,  the  testimony  of  witnesses  acquainted  with  the  value  of  sim- 
ilar property  is  admissible,  although  they  have  never  seen  the  very 
article  in  question."  Vagts  v.  Utman,  125  Wis.  265,  104  N.  W.  88; 
McGroarty  v.  Coal  Co.,  212  Pa.  53,  61  Atl.  570. 

5  9  In  Roberts  v.  Railroad  Co.,  128  N.  Y.  455,  467,  28  N.  E.  486,  13 
L.  R.  A.  499,  referring  to  this  class  of  questions,  it  is  suggested  that 
there  is  a  real  difference  between  the  two  methods ;  and  there  might 
be  were  it  not  for  the  fact  that  the  witness,  if  permitted  to  state 
what  amount  of  damages  the  plaintiff  had  sustained,  would  be  con- 
fined in  his  estimate  to  difference  between  the  two  values.  The  lan- 
guage of  the  opinion  is :  "And  yet  in  a  case  where  the  difference  be- 
tween the  two  would  be  the  legal  damages,  it  does  not  even  then  fol- 
low that  a  witness  may  be  asked  the  bald  question,  'What  amount 
of  damages  has  the  plaintiff  sustained?'  The  reason  is  that  the  rule 
of  damages  is  a  question  of  law,  and  the  witness  upon  such  a  ques- 
tion might  adopt  a  rule  of  his  own,  and  hold  the  defendant  respon- 
sible beyond  the  legal  measure."  But  see  Vandine  v,  Burpee,  13  Mete. 
(Mass.)  288,  46  Am.  Dec.  733,  where  upon  the  issue  as  to  the  damage 
done  to  a  nursery  by  fire  and  smoke  the  question  was  allowed ;  but 
this  was  after  the  witness  had  testified  fully  as  to  the  facts  of  the 
injury  done.  In  Parrott  v.  Ry.  Co.,  127  Iowa,  419,  103  N.  W.  352, 
the  witness  was  allowed  to  state  the  difference  between  the  values 
of  the  land  before  and  after  the  injury,  without  first  having  stated 
the  said  values.  Union  Pac.  R.  Co.  v.  Lucas,  136  Fed.  374,  69  C.  C. 
A.  218. 

It  is  upon  this  principle  that  the  decisions  in  the  following  cases 
may  be  rested:  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Teeters  (Ind.  App.) 
74  N.  E.  1014;  Patterson  v.  Johnson,  114  111.  App.  329;  Enlow  v. 
Hawkins,  71  Kan.  633.  81  Pac.  189;  Texas  &  P.  Ry.  Co.  v.  Ellerd 
(Tex.  Civ.  App.)  87  S.  W.  362 :  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Wat- 
son, 71  Kan.  696,  81  Pac.  499. 


246  OPINION    EVIDENCE.  (Ch.  10 


SANITY  AS   THE    SUBJECT   OF    EXPERT   OPINION. 

142.  The   question   of   sanity   forms   an   important   subject   of 

expert  testimony.  Expert  opir<ion,  in  its  narro^vest 
sense,   is  admissible  upon  tbis  question. 

143.  Opinions    of    persons    qualified    by    observation    are    also 

held  admissible  in  most  jurisdictions,  though  in  some 
it  is  held  that  they  can  only  be  given  after,  or  in  con- 
nection w^ith,  testimony  as  to  the  facts  on  Tvhich  they 
are  based. 

Sanity  is  a  fact  which  may  be  proved  in  different  ways.  The 
skilled  alienist,  who  has  made  a  special  study  of  mental  dis- 
eases, may  be  eminently  qualified  to  give  an  opinion,  from  cer- 
tain proved  facts,  as  to  whether  a  person  is  or  is  not  sane,  and 
his  opinion  may  have  great  weight  with  the  jury.  This  does 
not,  however,  render  of  less  value  the  opinion  of  one  who  has 
had  a  peculiar  opportunity  for  observation  of  the  person  whose 
sanity  is  in  question,  and  who,  from  that  observation,  whether 
he  be  a  physician  or  layman,  has  formed  that  opinion.  A  fami- 
ly physician  is  permitted  to  give  his  opinion  as  to  the  sanity 
of  a  patient,  and  he  is  often  spoken  of  as  an  expert.*"*  If  his 
opinion  is  based  on  his  observation,  and  he  has  no  special  skill 
fitting  him  to  give  such  opinion,  he  is  in  the  same  position  a.', 
any  intelligent  person  who  has  had  the  same  facilities  for  ob- 
servation, and  is  not  an  expert. 

In  all  jurisdictions,  expert  opinion  is  held  admissible  upon 
the  subject  of  sanity,  and  it  is  the  most  common,  though,  in 
the  refinements  of  expert  testimony  which  have  developed,  not 
always  the  most  satisfactory,  method  of  proof.  In  almost  all 
jurisdictions,  opinions  of  ordinary  observers  who  have  been 
acquainted  with  the  person  whose  sanity  is  under  examination 
are  admitted.*^ ^  This  is  on  the  very  reasonable  theory  that  per- 
sons of  ordinary  intelligence,  accustomed  to  associate  in  a 
business  and  social  way  with  the  person  in  question,  are  pecu- 

60  May  V.  Bradlee,  127  ^Nlass.  414,  421 ;  Hall  v.  Perry,  87  Me.  569, 
577.  3.'}  Atl.  160,  47  Am.  St.  Rep.  352 ;  State  v.  Meyers,  99  Mo.  107, 
121,  12  S.  W.  516. 

•ii  Connecticut  Miit.  Life  Ins.  Co.  v.  Lathrop,  111  U.  S.  612,  4  Sup. 
Ct.  533,  28  L.  Ed.  536. 


§§  1^:2-14:3)  SANITY.  247 

liarly  qualified  to  judge  of  his  mental  capacity;  that  their 
judgment,  based  upon  innumerable  facts  and  circumstances 
impossible  to  detail  to  a  jury,  but  which,  as  making  up  his 
daily  life,  in  its  outward  mental  and  physical  expression,  are 
particularly  valuable,  is  often  more  apt  to  be  reliable  than  the 
opinion  of  experts,  based,  as  is  ordinarily  the  case,  upon^  a 
meager  outline  of  the  facts  hypothetically  stated,  or  special 
examination  of  the  person  at  infrequent  intervals  and  for  short 
periods  of  time. 

In  many  jurisdictions  the  evidence  is  admitted  without  re- 
quiring the  facts  upon  which  the  opinion  is  based  to  be  stated, 
all  that  is  required  being  that  it  shall  appear  that  the  witness 
was  sufficiently  qualified  by  observation  and  acquaintance  to 
make  his  opinion  valuable.''^  In  other  jurisdictions  the  evi- 
dence is  admitted  only  after,  or  in  connection  with,  the  facts 
upon  which  it  is  founded,  and  the  facts  must  be  such  as  reason- 
ably justify  the  opinion  given  by  the  witness.  If  they  do  not, 
he  will  not  be  allowed  to  give  his  opinion."^  In  New  York, 
Massachusetts,  and  Maine,  the  evidence  is  not  allowed  at  all ; 

6  2  In  Hardy  v.  Merrill,  56  N.  H.  227,  22  Am.  Rep.  441,  will  be 
fouud  a  long  and  exhaustive  examination  of  the  cases,  with  the  re- 
sult that  on  principle  and  authority'  the  opinion  of  ordinary  observ- 
ers without  necessarily  detailing  facts  on  which  it  is  based,  is  held 
admissible.  To  the  same  effect  are  Hathaway's  Adm'r  v.  National 
Life  Ins.  Co.,  48  Vt.  335,  350;  Newcomb's  Ex'r  v.  Newcomb,  96  Ky. 
120,  123,  27  S.  W.  997;  Claiy's  Adm'rs  v.  Clary,  24  N.  C.  78;  Ter- 
ritory V.  Hart,  7  Mont.  489,  498,  17  Pac.  718 ;  State  v.  Lewis,  20  Nev. 
333,  345,  22  Pac.  241;    Estate  of  Brooks,  54  Cal.  471. 

6  3Hibbard  v.  Baker.  141  Mich.  124,  104  N.  W.  399 ;  Missouri.  K. 
&  T.  Rv.  Co.  V.  Allen  (Tex.  Civ.  App.)  87  S.  W.  168;  Williams  v. 
r^e,  47  Md.  321 ;  Stackhouse  v.  Horton,  15  N.  J.  Eq.  202,  208 ;  Yard- 
ley  V.  Cuthbertson,  108  Pa.  395,  449,  1  Atl.  705,  56  Am.  Rep.  218; 
Cropp  V.  Cropp,  88  Va.  753,  759,  14  S.  E.  529;  Johnson  v.  Culver, 
116  Ind.  278,  289.  19  N.  E.  129 ;  Smith  v.  Hickenbottom,  57  Iowa,  733, 
11  N.  W.  664 :  State  v.  Williamson,  106  Mo.  162,  170,  17  S.  W.  172 ; 
Upstone  V.  People,  109  111.  169,  175;  Rice  v.  Rice,  50  Mich.  448,  15 
N.  W.  545;  Stubbs  v.  Houston,  33  Ala.  555,  564;  Scalf  v.  Collins 
Co.,  80  Tex.  514,  16  S.  W.  314 ;  Denver  &  R.  G.  R.  Co.  v.  Scott,  34 
Colo.  99,  81  Pac.  763;  Howard  v.  Carter,  71  Kan.  85,  80  Pac.  61. 
In  Welch  v.  Stipe,  95  Ga.  762,  22  S.  E.  670.  even  a  mother  was  not 
allowed  to  testify  that  a  deceased  daughter  was  not  in  her  right 
mind,  without  giving  the  circumstances  upon  which  her  opinion  was 
based. 


248  OPINION    EVIDENCE.  (Ch.  10 

the  witness  being  confined  to  a  description  of  the  acts,  and  a 
statement  as  to  whether  such  acts,  in  his  opinion,  were  those 
of  an  irrational  person.^* 

There  is  another  class  of  testimon}^,  which  cannot  be  classed 
as  expert  testimony,  and  yet  does  not  stand  on  the  same  foot- 
ing with  that  of  ordinary  observers.  It  is  the  testimony  of 
the  subscribing  witnesses  to  a  will.  The  question  of  sanity 
arises,  perhaps,  more  often  than  anywhere  else,  in  cases  where 
the  competency  of  a  testator  to  make  a  will  is  brought  in  is- 
sue. In  these  cases  the  subscribing  witnesses  stand  in  a  some- 
what peculiar  position  with  respect  to  qualification  to  testify 
as  to  the  testator's  sanity.  "The  witnesses  are  chosen  by  the 
testator,  and  are  thereby,  under  the  law,  charged  with  an  im- 
portant duty  in  relation  to  the  execution  and  proof  of  the  will. 
It  may  be  presumed  that,  in  the  performance  of  that  duty,  they 
will  observe  carefully  the  appearance  of  the  testator  at  the 
time,  and  form  an  opinion  as  to  his  sanity.  That  opinion  natu- 
rally and  properly  may  determine  their  action  in  signing  or 
refusing  to  sign  as  witnesses."  ®^  Even  in  jurisdictions  where 
opinions  of  ordinary  observers  are  excluded,  those  of  subscrib- 
ing witnesses,  formed  at  the  time  of  the  execution  of  the  will, 
are  admitted;^*'  but,  with  respect  to  opinions  formed  after- 
wards, subscribing  witnesses  are,  in  such  jurisdictions,  held 
to  be  on  the  same  footing  with  other  nonexpert  witnesses.®'^ 

64  The  rule  in  New  York  is  confined  to  statements  as  to  the  acts. 
conversations,  or  looks  of  the  party  as  to  whether  they  were,  in  the 
opinion  of  the  witness,  irrational ;  in  other  words,  it  is  confined  to 
cases  where  the  witness  testifies  to  one  of  that  class  of  facts  here- 
tofore descrihed,  commonly  called  "impressions."  Ante,  p.  220 ;  Paine 
V.  Aklrich,  133  N.  Y.  544.  30  N.  E.  725 ;  People  v.  Strait,  148  N.  Y. 
506,  42  N.  E.  1045;  Smith  v.  Smith,  157  Mass.  389,  32  N.  E.  348: 
Wyman  v.   Gould,  47  Me.  159. 

65  Knowlton,  J.,  in  Williams  v.  Spencer.  150  Mass.  346,  23  N.  E. 
105,  5  L.  R.  A.  790,  15  Am.  St.  Rep.  206 ;  Titlow  v.  Titlow,  54  Pa. 
216,  222,  93  Am,  Dec.  691;  Walker  v.  AValker,  34  Ala.  469;  Garri- 
son V.  Blanton,  48  Tex.  299,  303. 

6  6  Clapp  V.  Fullerton,  34  N.  Y.  190,  90  Am.  Dec,  681 ;  Hastings  v. 
Rider,  99  Mass.  622, 

67  Williams  v.  Spencer,   supra. 


;§  144-145)  HANDWRITING.  249 


HANDW^RITING    AS    THE    SUBJECT    OF    EXPERT    TESTI- 
MONY. 

144.  Opinion   evidence   is   admissible   to  prove   handxTriting. 

145.  A  person  is  considered  qualified  to  testify  to  liandivrit- 

ing  ^vhen  lie  lias  seen  the  person  xrliose  handivriting 
is  in  question  w^rite,  or,  in  the  ordinary  course  of  busi- 
ness, has  become  familiar  %vitli  such  person's  hand- 
w^riting,  through  the  receipt  of  communications  pur- 
porting to  be  Tsrritten  by  him,  or  because  he  is  special- 
ly skilled  in  the  subject  of  hand\priting,  by  reason  of 
special   study  of   the   subject. 

The  subject  of  handwriting  is  one  which  may  be  taken  up 
to  better  advantage  in  connection  with  the  discussion  of  the 
law  of  evidence  relating  to  documents.  It  should,  however, 
be  mentioned  here  as  another  real  exception  to  the  rule  exclud- 
ing opinion  evidence.  The  reason  for  the  exception  is  plain. 
Unless  a  signature  or  writing  has  been  made  in  the  presence  of 
a  witness  who  can  afterwards  identify  it,  the  only  possible  proof 
of  handwriting  is  opinion  evidence,  and  opinion  evidence  of  per- 
sons specially  qualified  to  testify.  We  thus  have  in  the  proof 
of  handwriting  the  same  two  classes  of  expert  testimony  which 
have  been  before  referred  to, — that  which  is  based  on  observa- 
tion, and  that  which  is  based  on  a  special  training  or  education 
upon  a  particular  subject.  There  is  some  difference  of  opin- 
ion in  the  authorities  as  to  just  how  much  familiarity  from  ob- 
servation will  qualify  a  witness  to  give  his  opinion  as  to  hand- 
writing. The  general  rule,  however,  is  that  having  seen  the 
person  write  once  specially  qualifies  the  witness.^®  But,  upon 
the  entire  examination  of  the  witness  as  to  his  qualification, 

6  8  That  having  seen  the  party  write  once  is  sufficient.  Com.  v. 
Nefus,  135  Mass.  533;  Hammond  v.  Varian,  54  N.  Y.  398;  Frank 
V.  Berry,  128  Iowa,  223,  103  N.  W.  358.  The  fact  of  having  seen  the 
party  write  once  is  not  sufficient  qualification  if  the  witness  states 
he  did  not  know  the  handwriting.  Nelms  v.  State,  91  Ala.  97,  9 
South.  193.  The  mark  of  a  party  to  an  instrument  has  been  held 
to  be  the  same  as  handwriting  with  regard  to  manner  of  proof. 
Strong's  Ex'rs  v.  Brewer,  17  Ala.  706.  Also  writing  in  cipher.  Com. 
V.  Nefus,  135  Mass.  533.  It  is  sufficient  if  the  witness  has  seen  the 
party  write  after  the  date  of  the  writing  in  disi>ute,  Keith  v.  Loth- 
rop,  10  Cush.  (Mass.)  453 ;    but  not  if  the  party  wrote  in  the  pres- 


250  OPINION    EVIDENCE.  (Ch.  10 

it  must  appear  that  he  is  fairly  acquainted  with  the  handwrit- 
ing. Upon  the  witness'  opportunity  for  observation  and  famil- 
iarity of  the  handwriting  will  depend  the  weight,  rather  than 
the  admissibility,  of  his  testimony.*'^  The  mere  fact  of  having 
seen  the  person  write,  if  the  witness  does  not  have  sufficient 
education  or  intelligence  to  himself  read  the  writing,  will  not 
qualify  him.'^"  The  receipt  of  written  communications  which 
have  been  acted  upon  as  genuine  by  the  party  receiving  them 
is  universally  held  to  be  sufficient  to  qualify  the  witness.'^ ^ 

In  the  proof  of  handwriting  by  opinions  of  specially  qualified 
experts,  another  element  enters  into  the  testimony,  namely,  that 
of  comparison  of  handwriting — comparison  of  the  specimen  in 
question  with  an  admittedly  genuine  specimen.  An  opinion 
of  an  expert,  based  upon  a  careful  comparison  by  him  of  the 
disputed  writing  with  a  genuine  specimen,  is  generally  held  ad- 
missible.''^    An  ordinary  witness  cannot  testify  from  compari- 

ence  of  the  witness  for  the  purpose  of  enabling  him  to  testify,  Ter- 
ritory V.  O'Hare,  1  N.  D.  30,  44  N.  W.  1003. 

69  Franli  v.  Berry,  128  Iowa,  223.  103  N.  W.  858. 

7  0  For  a  careful  discussion  of  requirements  necessary  to  qualify 
a  witness  where  testimony  is  offered  on  the  theory  that  he  has  seen 
the  person  write,  see  opinion  of  Martin,  J.,  in  People  v.  Corey,  148 
N.  Y.  476,  42  N.  E.  106G.  But  see  Foye  v.  Patch,  132  Mass.  105.  The 
question  is  also  ably  discussed  in  Woodman  v.  Dana,  52  Me.  9.  See, 
also,  Burnham  v.  Ayer,  36  N.  H.  182 ;    State  v.  Scott,  45  Mo.  302. 

71  Cunningham  v.  Bank,  21  Wend.  (N.  Y.)  557;  Chaffee  v.  Taylor, 
3  Allen  (Mass.)  508;  Riggs  v.  Powell,  142  111.  453,  32  N.  E.  482 ;  Pear- 
son V.  McDaniel,  62  Ga.  100;  Campbell  v.  Iron  Co.,  83  Ala.  351,  3 
South.  369 ;  Atlantic  Ins.  Co.  v.  Planning,  3  Colo.  224 ;  Southern  Kxp. 
Co.  V.  Thornton.  41  Miss.  216;  Melby  v.  Osborne,  33  Minn.  492,  24 
N.  W.  253  ;  Ullman  v.  Babcock,  63  Tex.  68.  It  is  necessary  that  the 
letters  be  in  the  ordinary  course  of  business,  and  that  the  witness 
has  relied  upon  them  in  the  business  matters  to  which  they  relate. 
Pinkham  v.  Cockell,  77  Mich.  265,  43  N.  W.  921. 

7  2  Miles  V.  Loomis,  75  N.  Y.  2S8,  31  Am.  Rep.  470;  Carter  v.  Jack- 
son, 58  N.  H.  156;  Bell  v.  Brewster,  44  Ohio  St.  690,  10  N.  E.  679; 
State  V.  Thompson,  80  Me.  194,  13  Atl.  892,  6  Am.  St.  Rep.  172 ;  State 
V.  Ward,  39  Vt.  225,  233 ;  Vinton  v.  Peck,  14  :Mich.  287 ;  Hanriot  v. 
Sherwood,  82  Va.  1.  See  Moody  v.  Rowell,  17  Pick.  (Mass.)  490,  28 
Am.  Dec.  317,  for  a  careful  discussion  of  the  three  kinds  of  hand- 
writing evidence  mentioned  in  this  section,  with  the  conclusion  that 
all  thi-ee  are  admissible.  The  English  common-law  doctrine  with  re- 
gard to  the  subject  will  be  found  discussed  fully  in  Doe  v.  Sucker- 
more,  5  Adol.  &  E.  703.     The  judges  in  that  case  were  evenly  di- 


§§  144-145)  HANDWRITING.  251 

son.  The  rule  is  confined  strictly  to  experts."  It  is  also  held 
that  an  expert  may,  without  resort  to  comparison,  testify  to 
the  g^enuineness  of  the  handwriting  direct ;  that  is,  he  may  give 
an  opinion  as  to  whether  it  is  a  natural  or  simulated  hand.'* 
The  submission  of  genuine  specimens  to  the  jury,  for  the 
purpose  of  having  them  make  a  comparison  with  the  disputed 
handwriting,  may  have  come  about  through  the  practice  of 
allowing  the  jury  to  make  the  comparison  where  admittedly 
genuine  specimens  were  introduced  in  evidence  for  other  pur- 
poses, or  where  they  were  a  part  of  the  records  in  the  case.  The 
cases  seem  to  be  uniform  in  allowing  the  comparison  to  be  made 
under  such  circumstances — possibly  for  the  reason  that,  such 
specimens  "being  before  the  jury,  it  is  hardly  possible  to  pre- 

vided  (Lord  Denman  and  Mr.  Justice  Williams  favoring,  and  Jus- 
tices Coleridge  and  Patteson  opposing)  upon  tlie  question  of  admit- 
ting the  testimony  of  an  expert  who  had  made  an  examination  of  ad- 
mittedly genuine  specimens  on  the  first  day  of  the  trial,  and  was 
called  to  testify  on  the  second,  and  at  that  time  stated  that  he 
thought  he  had  acquired  a  linowledge  of  the  handwriting  in  ques- 
tion sufficient  to  enable  him  to  tell  whether  any  particular  specimen 
was  genuine.  The  judges,  however,  recognize  with  unanimity  the 
well-established  English  common-law  doctrine  that  comparison  of 
hands  by  the  jury  or  by  witnesses  will  not  be  allowed  upon  speci- 
mens introduced  for  that  purpose.  For  purposes  of  comparison  it 
is  held  that  only  original  specimens  may  be  used;  press  copies  will 
not  do.  Com.  v.  Eastman.  1  Cush.  (Mass.)  189,  217.  48  Am.  Dec.  .596. 
See  West  v.  State.  22  N.  J.  Law,  212;  Riggs  v.  Fowell.  142  111.  453, 
32  X.  E.  482 ;  Tuttle  v.  Rainey.  98  N.  C.  513,  4  S.  E.  475 :  Territory 
V.  O'Hare.  1  N.  D.  30.  44  N.  W.  1008— to  the  efCect  that  handwrit- 
ing may  not  be  proved  by  comparison  of  hands.  It  is  sometimes  held 
that  comparison  will  be  allowed  in  the  case  of  ancient  documents, 
though  not  otherwise,  on  the  theory  that  in  such  cases  it  cannot  be 
proved  in  any  other  way.     Fee  v.  Taylor,  83  Ky..  2.59. 

7  3  Woodman  v.  Dana.  52  Me.  9.  15;  Griffin  v.  State.  90  Ala.  596. 
8  South.  670;  In  re  Burbank's  AVill,  104  App.  Div.  312,  93  N.  Y. 
Supp.  866. 

T4  Doe  V.  Suckermore,  5  Adol.  &  E.  703.  751.  Lord  Denman.  in 
this  case,  speaks  thus  of  this  class  of  evidence:  "On  the  question 
whether  handwriting,  looked  at  by  itself,  is  genuine  or  forged,  the 
cases  appear  to  me  to  have  justly  exploded  the  notion  that  bare  in- 
spection by  the  most  skillful  person  can  furnish  means  for  forming 
an  opinion.  *  *  *  I  do  not,  indeed,  understand  how  such  evi- 
dence could  be  rejected,  if  a  witness  should  swear  that  his  habits 
gave  him  the  requisite  skill ;    but  I  do  not  think  that  either  court 


252  OPINION    EVIDENCE.  (Ch.  10 

vent  a  comparison  being  instituted."  ''^  The  English  common- 
law  doctrine  was  that  specimens  of  handwriting  irrelevant  to 
the  issues  in  the  case  would  not  be  admitted  solely  for  the  pur- 
pose of  enabling  the  jury  to  compare  them  with  the  writing  in 
dispute/''  and  this  was  adopted  as  the  proper  rule  by  the 
United  States  Supreme  Court. '^'^  Under  the  general  American 
doctrine,  however,  such  comparison  is  allowed. 

or  jury  would  believe  him,  or  place  the  least  reliance  on  his  opin- 
ions. Practically  therefore  this  chapter  may  be  couslderod  as  ex- 
punged from  the  book  of  evidence."  See  Sudlow  v.  Warshing,  108 
N.  Y.  520,  15  N.  E.  532. 

T5  Patteson,  J.,  in  Doe  v.  Suckei-more,  5  Adol.  &  E.  703,  734;  Moore 
V.  U.  S.,  91  U.  S.  270,  23  L.  Ed.  346 ;  State  v.  Minton,  116  Mo.  605, 
614,  22  S.  W.  808. 

7  6  Doe  V.  Newton,  5  Adol.  &  E.  514. 

7  7  Moore  V.  U.  S.,  91  U.  S.  270,  23  L.  Ed.  346. 


HEAESAT.  25P 


!«.> 


CHAPTER  XL 

HEARSAY. 

146.  Statement  of  General  Rule. 

147.  Apparent  Exceptions^Statements  in   Issue. 

148.  Statements  the  Making  of  Which  is  Circumstantial  Ev- 

idence 

149.  Market  Value  and  Reputation. 

150.  Real  Exceptions  to  General  Rule  Against  Hearsay — State- 

ments Admitted  Because  of  the  Difficulty  of  Other 
Proof. 

151.  Declarations  of  Testator  as  to  Contents  of  Will. 

152.  Declarations  Concerning   Ancient  Ownership. 

153.  Matters  of  Pedigree. 

154.  Kinds  of   Declarations  Admissible. 

155.  By  Whom  Declarations  Must  be  Made. 
156-157.                    Proof  as  to  Declarant's  Connection  with  Family. 

158.  Extent  of  Rule. 

159.  Admissibility  as  AfCected  by  Time  of  Making  Dec- 

larations. 

160.  Proof  of  Age  of  Person. 

161.  Matters  of  a  Public  Nature. 

162.  Statements   Admitted   Because  of  Circumstances  Giv- 

ing Them  Special  Reliability. 

163.  Declarations  Made  Under  Oath. 

164.  Conditions  Under  Which  Declarations  Under  Oath 

are  Admissible. 

165.  Identity  of  Parties. 

166.  Disabilities  Which  are  Recognized. 

167.  Manner  of  Proof  of  Declarations. 

168.  Precise  Language  Not   Necessary. 

169.  Extension  of  Rule. 

170.  Declarations  Made  in  the  Regular  Course  of  Business. 

171.  Shop-Book  Rule. 

172.  American  Doctrine. 

173.  Entries  Must  be  Original. 

174.  Rule  Confined  Strictly  to  Shop  Books. 

175.  Death  Not  Essential   to  Admissibility. 

176.  Authentication  of  Entries. 

177.  Extension  of  Rule. 

178.  Rule  Restricted  as  to  Amount  Involved. 

179.  Scope  of  Proof. 

180.  Entries  Made  by  Strangers. 

181.  As  to  Oral  Declarations. 

182.  Meaning  of  "Regular  Course  of  Business." 


254  HEARSAY.  (Ch.  11 

183.  Must  be  Contemporaneous. 

184.  By  Whom  Entries  Made. 

185.  What  Disabilities  Sufficient 

186.  Declarations  Against  Interest. 

1S7.  Declarations  Must  have  been   Spontaneous. 

188.  Must  be  Against  Pecuniary  or  proprietary  Inter- 

est. 

189.  Death   a  Prerequisite. 

190.  Kind   of  Declarations   Admitted. 
101.  Scope  of  Declaration  as  Evidence. 

192.  Admissibility  to  be  Determined  by  the  Court. 

193.  Dying  Declarations — Ground  of  Admissibility. 

194.  Expectation  of  Immediate  Death. 

195.  In  What  Cases  Admissible. 

196.  By  Whom  Must  have  been  Made. 

197.  To  What  Declarations  Must  Relate. 

198.  Competency. 

199.  Form   of  Declaration  Immaterial. 

200.  Court  to  Determine  Admissibility. 

201.  Matters  of  Public  or  General  Interest — General  Rule. 
202-204.  Distinction  Between  Public  Interest  and  General 

Interest. 
20.5.  Two  Kinds  of  Hearsay  Admissible. 

206-207.  Public  Documents  and  Books. 

208.  Declarations  Which  are  Part  of  the  Res  Gestae. 

209.  Must  be  Contemporaneous. 

210.  Cases  Not  Belonging  Under  this  Head. 


STATEMENT  OF  GENERAL  RULE. 

146.  Statements,  oral  or  ^vrittem,  made  by  persons  not  par- 
ties to  the  suit,  and  not  witnesses  therein,  are  not  ad- 
missible to  prove  the  truth  of  the  facts  stated,  except 
in  two  classes  of  cases: 

(a)  W^here   they  are   rendered  necessary  by  the   difficulty  of 

other  proof. 

(b)  'Where    the    circumstances   under    w^hich    they    are    made 

furnish  some  guaranty  of  their  reliability,  other  than 
the   mere  fact   of   their  having  been  made. 

The  above  is  a  statement  of  the  rule  of  evidence  commonly 
called  the  "rule  against  hearsay,"  and  perhaps  is  as  satisfactory 
a  statement  as  any.  It  is  a  rule  which  has  been  so  broadly,  and 
again  so  narrowly,  stated  as  to  render  it  somewhat  difficult  to 
put  it  in  a  form  which  will  be  brief,  and  at  the  same  time  cover 


§  146)  STATEMENT   OF    GENERAL   RULE.  255 

the  principles  generally  recognized  in  the  cases.*  The  rule 
has  arisen  with  the  development  of  the  law  of  evidence,  as  one 
of  the  rules  which  is  supposed  to  keep  from  the  jury  matter, 
the  nature  and  effect  of  which  they  are  not  qualified  to  proper- 
ly estimate.  It  would  seem  that  the  rule  against  hearsay  had 
no  existence  before  the  development  of  the  modern  jury  sys- 
tem.^    And  it  was  probably  never  recognized  as  a  rule  of  uni- 

1  Stephen,  in  his  Digest  of  the  Law  of  Evidence  (article  14),  to  con- 
form the  rule  to  the  theory  of  relevancy,  upon  which  his  whole  work 
Is  based,  is  obliged  to  put  it  somewhat  awkwardly:     "The  fact  that 
a  statement  was  made  by  a  person  not  called  as  a  witness,  and  the 
fact  that  a  statement  is  contained  or  recorded  in  any  book,  document, 
or  record  whatever,  proof  of  which  is  not  admissible  on  other  grounds, 
are,  respectively,  deemed  to  be  irrelevant  to  the  truth  of  the  matter 
stated,  except  (as  regards  [a])  in  the  cases  contained  in  the  first  sec- 
tion of  this  chapter,  and  except  (as  regards  [b])  in  the  cases  contain- 
ed in  the  second  section  of  this  chapter."     Greenleaf  (Evidence  [15th 
Ed.]  par.  99)  defines  hearsay  as  "that  kind  of  evidence  which  does 
not  derive  its  value  solely  from  the  credit  to  be  given  to  the  witness 
himself,  but  rests  also,  in  part,  on  the  veracity  and  competency  of 
some  other  person."     As  a  definition,  this  is  so  broad  as  to  include 
many  classes  of  testimony  which  have  nothing  to  do  with  the  rule 
against  hearsay.     See  Chamberlayne  s  Best,  Ev.  (Sth  Ed.)  p.  444.    The 
following  facts  present  a  common  case  for  the  application  of  the 
hearsay  rule:     A.  v.  X.  for  conversion  of  personal  property.     X.,  a 
constable,  seized  the  property  under  a  levy  on  a  judgment  against 
A.'s  father.     A,  testified  he  was  the  owner,  and  offered  in  evidence 
receipts  showing  payment  by  him  of  tlie  rent  of  the  premises  where 
the  goods  were  kept.    The  receipts  are  hearsay,  being  nothing  more 
than  the  unsworn  statements  of  the  party  giving  them.     Silverstein 
V.  O'Brien,  165  Mass.  512,  43  N.  E.  496. 

2  Thayer,  in  his  Cases  on  Evidence  (2d  Ed.,  pages  313-315),  has  col- 
lected a  number  of  cases  showing  the  old  ideas  in  respect  to  this  class 
of  evidence.  There  seems  to  have  been  no  idea  that  it  was  inadmis- 
sible in  1554.  Thomas'  Case,  1  Dyer,  99b,  pi.  68.  But  a  centuiy  la- 
ter (1  Hale,  P.  O.  306)  Sir  Matthew  Hale  says  that  the  opinion  ex- 
pressed in  Thomas'  Case  was  rejected  by  all  the  judges.  In  Sir  Wal- 
ter Raleigh's  Case  (1603)  1  Jard.  Cr.  Trials,  429,  430,  and  again  in 
Lutterell  v.  Reynell  (1670)  1  Mod.  282,  it  was  held  admissible  to  con- 
firm the  testimony  of  a  witness  given  at  the  trial  by  statements  made 
before.  In  the  latter  case  the  lord  chief  baron  said,  "though  a  hear- 
say was  not  to  be  allowed  as  a  direct  evidence,  yet  it  might  be  made 
use  of  to  this  purpose,  viz.,  to  prove  that  William  Maynard  was  con- 
stant to  himself,  whereby  his  testimony  was  corroborated."  Other 
cases  referred  to  bv  Thayer  in  the  same  line  are  Re  Friend's  Case 
(1692)  13  How.  St.  Trials,  31,  32 ;    Style,  Prac.  Reg.  (Ed.  1670)  1731. 


256  HEARSAY.  (Ch.  11 

versal  application.  It  was  not  one  of  those  rules  which,  finding 
their  reason  in  some  condition  of  the  period,  are  at  first  rigid- 
ly enforced,  but  afterwards  suffer  numerous  curtailments 
through  exceptions  made  necessary  by  changing  conditions. 
In  fact,  the  rule  against  hearsay  may  be  called  a  principle, 
rather  than  a  rule.  It  is  convenient  to  state  it  as  a  broad  rule, 
and  to  treat  those  matters  to  which  the  principle  of  exclusion 
has  not  been  extended  as  exceptions,  but  it  is  well  to  under- 
stand that  this  is  rather  a  particular  method  of  treatment  than  a 
classification  made  necessary  by  the  nature  of  the  subject.  The 
old  cases  show  that  many  of  the  instances  which  are  now  re- 
garded as  exceptions  to  the  hearsay  rule  are  only  survivals  of 
the  old  law  in  regard  to  the  admission  of  this  class  of  evidence, 
and  prove  that  the  rule  was  always  subject  to  limitations.  Dec- 
larations of  deceased  persons,  entries  in  tradesmen's  books,  and 
ancient  deeds  are  illustrations  of  this.^ 

By  1783  the  doctrine  laid  down  in  Lutterell  v.  Reynell  had  been  re- 
pudiated. Rex  V.  Parker.  3  Doug.  244.  In  Style,  Prae.  Reg.  (4th 
Ed.,  1707)  p.  250,  it  is  said :  "A  person  that  may  be  admitted  as  a 
witness  at  a  trial  may  give  words  in  evidence  to  the  jury  which  were 
spoken  to  him  by  another  person,  who  by  the  rules  of  the  court  might 
not  be  admitted  as  a  witness  at  the  trial.  Mich.  22  Car.  B.  R.  For 
it  is  but  matter  of  evidence,  and  is  left  to  the  jury  how  far  they  will 
give  credit  to  them,  and  it  is  lawful  for  one  that  is  admitted  as  a  wit- 
ness to  give  anything  in  evidence  which  may  concern  the  matter  in 
question."  For  an  exhaustive  treatise  on  the  early  history  and  de- 
velopment of  hearsay  rule,  see  an  article  by  Prof.  John  H.  Wigmore 
In  17  Harvard  Law  Rev.  437. 

3  In  Style,  Prac.  Reg.  (4th  Ed.,  1707)  p.  247,  we  find  the  follow- 
ing: "In  an  information  of  perjuiy,  to  prove  the  perjury,  one  was 
produced,  to  what  one  since  dead  swore  upon  the  first  trial,  and  al- 
lowed good  evidence."  And  on  page  2.53 :  "An  ancient  writing  that 
is  proved  to  have  been  found  amongst  deeds  and  evidences  of  land 
may  be  given  in  evidence  to  a  jury,  although  the  executing  of  it  can- 
not be  proved.  Mich.  24  Car.  B.  R.  For  it  is  very  hard  to  prove 
things  which  are  very  ancient,  and  the  finding  it  in  such  a  place  is 
a  presumption  that  it  was  preserved  as  a  thing  of  value,  and  to  be 
made  use  of,  and  is  left  to  the  jury  what  credit  they  will  give  to  it 
according  to  circumstances."  Dockwray  v.  Dickenson,  Comb.  366, 
367.  Here,  when  the  question  was  as  to  what  a  cargo  consisted  of, 
the  bill  of  lading  signed  by  the  captain,  who  was  dead,  was  allowed. 


147)  APPARENT  EXCEPTIONS.  257 


APPARENT    EXCEPTIONS— STATEMENTS   IN   ISSUE. 

147.  Statements,  oral  or  written,  the  making  of  which,  is  a 
material  fact  in  dispute,  are  not  hearsay.  A  witness 
may  testify  to  the  hearing  of  such  statements,  if  oral; 
or,  if  written,  the  statements  may  be  introduced. 

Considerable  confusion  has  arisen  in  respect  to  the  applica- 
tion of  the  so-called  rule  against  hearsay  by  the  failure  to  dis- 
tinguish between  statements  the  making  of  which  is  in  dispute, 
and  statements  which  relate  to  the  facts  in  dispute.  Anything 
which  is  in  issue  may  be  proved,  whether  it  be  a  physical  fact, 
or  the  making  of  a  statement.  In  the  latter  case  the  testimony 
of  a  witness  that  such  statement  was  made  becomes  original 
evidence  of  a  fact  in  dispute.  Evidence  within  the  personal 
knowledge  of  the  witness  testifying  is,  of  course,  admissible. 
It  is  no  exception  to  the  hearsay  rule,  because  it  has  nothing 
to  do  with  it.  Instances  of  this  sort  arise  in  cases  for  libel  and 
slander,  where  the  making  of  the  libelous  statement  is  denied. 
In  such  a  case  A.  charges  X.  with  the  making  of  a  certain 
statement.  X.  denies  it.  The  making  of  the  statement  is  the 
principal  fact  in  issue.  Evidence  by  any  witness  who  heard 
the  statement  made  is  direct  evidence  to  prove  such  fact. 
There  is  no  question  of  hearsay  involved.* 

4  In  actions  for  libel,  declarations  may  become  material  in  a  col- 
lateral way  as  evidence  bearing  on  the  question  of  malice.  On  this 
principle,  declarations  made  to  the  person  charged  with  publishing 
the  libel,  which  would  reasonably  lead  him  to  believe  the  publication 
was  true,  are  admissible.  Jones  v.  Townsend's  Adm'x,  21  Fla.  431, 
441,  58  Am.  Rep.  676.  The  case  of  Connelly  v.  Brown,  73  N.  H.  193, 
60  Atl.  750,  is  an  interesting  illustx'ation  of  the  same  principle.  The 
action  was  for  deceit  on  the  part  of  the  defendant  in  the  sale  of  the 
furniture  of  a  boarding  house  to  the  plaintiff;  the  deceit  claimed 
being  a  representation  by  the  defendant  that  the  plaintiff  could  con- 
tinue occupying  the  premises.  The  plaintiff  introduced  evidence  tend- 
ing to  show  that  the  defendant  had  received  notice  to  quit  from  the 
landlord.  Upon  the  question  of  the  good  faith  upon  the  part  of  de- 
fendant in  the  assurances  to  plaintiff  as  to  the  continued  occupancy 
of  the  premises,  it  was  held  that  statements  made  by  the  landlord 
to  defendant  urging  the  defendant  to  remain  in  the  premises  were 
competent.  In  this  case  it  will  be  readily  seen  that  the  making  of 
the  statements  by  the  landlord  was  in  itself  an  evidential  fact  bear- 

M'KELV.EV.(2d  ED.)— 17 


258  HEARSAY.  (Ch.  11 


SAME— STATEMENTS   THE   MAKING   OF   AVHICH   IS   CIR- 
CUMSTANTIAL EVIDENCE. 

148.  The  fact  of  the  luaking  of  a  statement  inhere  it  tends 
to  prove  a  material  fact  in  issue  is  admissible  as  cir- 
cumstantial  evidence. 

Statements  may  be  original  circumstantial  evidence  of  facts 
in  issue,  and  are  then  admissible.  They  are  admissible  because 
the  fact  of  their  making  throws  light  upon  the  question  of  the 
truth  or  falsity  of  the  disputed  facts ;  not  because  they  state 
anything  in  regard  to  the  existence  or  nonexistence  of  such 
facts,  but  because  they  in  some  way  illustrate  an  attitude  or 
state  of  mind  or  other  evidentiary,  fact  from  which  the  main 
fact  may  be  inferred. °  It  will  thus  be  noted  that  declarations, 
in  this  sense,  are  not  hearsay,  except  in  a  limited  sense.  It  may 
be  that  the  state  of  mind  which  the  making  of  the  statement 
tends  to  prove  is  declared  in  the  statement  itself.  This  is  the 
case  wherever  the  substance  of  the  declaration  is  relied  upon, 
rather  than  the  manner  of  making  it.    The  manner  of  making 


ing  upon  the  main  fact  in  issue,  and  that  it  was,  therefore,  admis- 
sible for  the  purpose  of  establishing  such  main  fact  to  wit,  that  the 
condition  with  respect  to  continued  occupancy  of  the  premises  was 
as  the  defendant  had  represented  to  the  plaintiff. 

5  A.  V.  X.  Action  of  assumpsit  to  recover  for  board  and  necessa- 
ries furnished  to  M.,  the  wife  of  X.  and  daughter  of  A.  A.'s  evi- 
dence tended  to  show  that  X.  had  refused  to  provide  for  M.,  and  that 
she  had  returned  to  his  (A.'s)  house.  X.  testified  he  had  engaged 
board  for  M.  and  himself  at  the  house  of  his  mother,  and  offered  ta 
show  statements  made  by  M.  evincing  her  satisfaction  at  such  ar- 
rangement. It  was  held  that  the  evidence  was  competent.  Jacobs 
v.  Whitcomb,  10  Cush.  (Mass.)  2o.j.  In  case  of  so-called  "implied  con- 
fessions," the  evidence  usually  consists  of  testimony  as  to  statements 
made  in  the  presence  of  the  accused,  and  his  manner  or  attitude  in 
respect  thereto.  This  is  another  illustration  of  the  introduction  of 
statements  for  some  circumstantial  force  which  they  have,  and  not 
to  prove  the  truth  of  things  stated.  People  v.  Ah  Yute,  53  Cal.  613. 
Declarations  made  by  a  third  person  to  a  witness,  which  have  fixed 
in  his  recollection  material  facts  to  which  he  is  testifying,  are  ad- 
mitted on  the  same  principle.  State  v.  Fox,  25  N.  J.  Law,  5G6,  602; 
Hill  V.  North,  34  Vt.  604,  616;    Barrow  v.  State,  80  Ga.  191,  104,  5 


§  14S)  APPARENT   EXCEPTIONS.  259 

a  statement,  and  the  language  used,  may  tend  to  show  a  cer- 
tain intent  or  motive,  or  a  state  of  anger,  malice,  approval,  or 
satisfaction.  In  addition  to  this,  the  statement  may  itself  de- 
clare a  state  or  intention  or  condition  of  the  mind,  as  where  a 
person,  in  a  fit  of  mental  depression,  expresses  an  intention 
to  drown  herself.  If  such  intention  be  material  as  a  fact  in 
issue,  the  statement  is  admissible,  to  prove,  both  by  the  man- 
ner of  its  making  and  by  its  substance,  that  tlie  intention  ex- 
isted. Yet  the  statement  is  not,  in  the  strict  sense,  hearsay 
evidence.®    It  is  the  circumstances  which  surround  the  making, 

S.  E.  64.     In  Philadelphia  &  T.  R.  Co.  v.  Stimpson,  14  Pet.  (U.  S.) 
448,  10  L.  Ed.  535,  it  was  held  that  statements  made  to  third  per- 
sons by  a  patentee,  in  which  he  described  his  invention  and  explain- 
ed its  parts,  were  admissible  as  a  part  of  the  res  gestae,  to  fix  the 
date  of  the  invention.    Such  declarations  are  scarcely  within  the  rule 
as  to  res  gestae,  but  are  clearly  admissible  upon  the  principle  stated 
in  the  text.    They  are  circumstantial  evidence  of  a  material  fact  in^ 
issue.     Upon  a  question  as  to  whether  the  defendant  had  procured 
certain  property  from  the  plaintiff's  intestate  by  fraud,  it  has  been 
held  proper  to  permit  a  witness  to  testify  to  the  statements  made  ^ 
by  the  intestate  that  she  intended  to  give  her  property  to  the  plain- 
tiff.    As  a  piece  of  circumstantial  evidence,  the  statement  of  an  in- 
tention to  give  property  to  the  plaintiff  leads  to  the  inference  that 
the  intestate  did  not  voluntarily  give  the  property  to  another  per- 
son.   Hagar  v.  Norton,  188  Mass.  47,  73  N.  E.  1073.    Where  it  is  ma- 
terial to  show  that  a  person  is  conscious,  statements  made  by  such 
person  in  conversation  at  various  times  after  an  accident  are  admis- 
sible.   Hayes  v.  Pitts-Kimball  Co.,  183  Mass.  262,  67  N.  E.  249.    Tliere 
is  danger  of  carrying  the  application  of  the  principle  upon  which 
statements  are  admitted  as  circumstantial  evidence  too  far,  as  was 
illustrated  in  Sheldon  v.  Bigelow,  318  Iowa.  586,  92  N.  W.  701.     In 
this  case  an  attempt  was  made  to  hold  A.  as  a  partner  in  a  firm  of 
which  his  mother  was  a  member,  and  as  bearing  upon  the  fact  of 
A.  being  a  partner  a  statement  of  the  mother  was  admitted  to  the 
effect  that  her  object  in  continuing  the  biisiness  was  to  aid  her  son 
in  establishing  himself  therein.     Such  statement,   if  it  had  been  a 
direct  assertion  that  the  son  was  a  partner,  would  clearly  have  been 
inadmissible.     As  an  indirect  statement  leading  to  such  conclusion, 
is  it  not  equally  objectionable? 

6  In  Com.  V.  Trefethen,  157  Mass.  180,  31  N.  E.  961,  24  L.  R.  A. 
235,  will  be  found  a  full  examination  of  the  authorities,  and  a  care- 
ful discussion  of  this  particular  class  of  evidence.  It  is  there  said 
fpage  188.  157  Mass..  and  page  964.  31  N.  E.  [24  L.  R.  A.  235]) :  "Cer- 
tainly to  confine  the  evidence  to  acts,  appearance,  or  speech  which 


^ 


2G0  HEARSAY.  (Ch.  11 

and  the  manner  in  which  it  is  made,  which  give  it  force  as  evi- 
dence. Where  a  condition  of  mind  is  involved,  the  court  re- 
Hes  upon  and  admits  as  evidence  what  all  men  are  accustomed 
to  rely  and  act  upon.  The  mind  betrays  its  condition  in  man- 
ner and  speech,  and  upon  this  must  rest  the  conclusions  of 
others  with  reference  to  it.  It  constitutes  original  evidence, 
and  not  hearsay.'^  A  condition  of  bodily  health  is  sometimes 
put  on  the  same  basis,  and  declarations  allowed,  as  tending 
to  throw  light  upon  it.* 


is  wholly  involuntaiy  would  be  impracticable  and  unreasonable,  for 
almost  every  expression  of  thought  or  feeling  can  be  simulated ;  and 
although  evidence  of  the  conscious,  voluntary  declarations  of  a  per- 
son as  indications  of  his  state  of  mind  has  in  it  some  of  the  elements 
of  hearsay,  yet  it  closely  resembles  evidence  of  the  natural  expres- 
sion of  feeling  which  has  always  been  regarded  in  the  law  not  as 
hearsay,  but  as  original,  evidence."  Where  it  was  in  question  wheth- 
er the  deceased  had  met  an  accidental  death,  it  was  held  that  a  dec- 
laration made  by  him  when  last  seen  alive  that  he  was  going  on  busi- 
ness to  a  place  near  where  his  body  was  found  was  admissible.  Lan- 
don  V.  Preferred  Ace.  Insurance  Co.,  43  App.  Div.  487,  60  N.  T. 
Supp.  188,  affirmed  167  N.  Y.  577,  60  N.  E.  1114.  Along  the  same 
line  are  Mathews  v.  Railway  Co.,  81  Minn.  303,  84  N.  W.  101,  83  Am. 
St.  Rep.  383;  Mutual  Life  Ins.  Co.  v.  Hillmon,  145  U.  S.  285,  12 
Sup.  Ct.  909,  36  L.  Ed.  706. 

In  Jones  v.  State,  44  Fla.  74,  32  South.  793,  the  question  being  one 
of  asjtault,  and  evidence  of  prior  threats  by  the  accused  having  been 
<^  introduced,  a  statement  made  by  the  accused,  eight  or  ten  days  after 

the  alleged  assault,  that  he  would  kill  the  assaulted  person,  was  ad- 
mitted in  evidence  as  showing  a  guilty  intent. 

7  "Whenever  the  mental  feelings  of  an  individual  are  to  be  proved, 
the  usual  expi-essions  of  such  feelings  are  original  evidence,  and 
often  the  only  proof  of  them  which  can  be  had."  Jacobs  v.  Whit- 
comb,  10  Cush.  (Mass.)  255,  257.  The  fact  that  a  testatrix  died  in 
the  belief  that  her  will  was  in  existence  has  been  held  to  be  a  fact 
provable  by  declarations  made  by  her  within  three  days  of  her  death 
that  the  will  was  with  the  notary.  The  case  being  one  of  a  lost  will, 
such  belief  was  material  as  tending  to  negative  an  intention  to  revoke. 
In  re  Steinke's  Will,  95  Wis.  121,  70  N.  W.  61.  Such  declarations 
would  not  have  been  admissible  to  prove  the  existence  of  the  will. 
In  re  Valentine's  Will,  93  Wis.  45,  67  N.  W.  12.  See  18  Harvard  Law 
Rev.  387. 

8  In  State  v.  Harris,  03  N.  C.  1,  6,  such  evidence  is  described  as 
falling  under  the  head  of  natural  evidence. 


§  148)  APPARENT   EXCEPTIONS.  261 

Where  the  statements  relate  directly  to  the  condition  of  the 
person  making  them,  as  where  they  describe  the  physical  or 
mental  feelings,  they  are  in  one  sense  hearsay,  and  yet  they 
cannot  be  strictly  treated  as  such.  It  is  the  natural,  and  in  fact 
the  only  reliable,  way  of  ascertaining  the  physical  condition 
of  a  person  is  to  inquire  of  him  and  take  his  statements  as  to  his 
own  symptoms.  Such  statements  may  be  said  to  have  a  double 
character.  They  are  statements  of  a  fact,  and  they  are  also 
facts  in  themselves  ;  i.  e.,  the  making  of  them,  under  the  circum- 
cumstances  surrounding  their  making,  is  a  fact  having  distmct 
probative  force. 

Such  statements  might,  therefore,  be  treated  either  under  the 
head  of  this  section  or  under  the  head  of  that  exception  to  the 
hearsay  rule  embracing  statements  admitted  because  of  cir- 
cumstances giving  them  special  reliability.  In  the  latter  aspect 
their  value  as  evidence  depends  upon  the  circumstances  under 
which  they  are  made.  In  one  case,  where  they  were  made  for 
the  purpose  of  enabling  a  physician  to  testify  as  to  the  physical 
condition  of  the  witness,  they  were  held  to  be  inadmissible,  on 
the  theory  that  under  the  circumstances  all  incentive  to  truth- 
fulness was  gone,  and  instead  self-interest  became  a  motive  for 
distortion,  exaggeration,  and  falsehood.^ 

A  familiar  instance  of  the  admission  of  declarations  of  this 
sort  is  found  in  a  case  where  the  testamentary  capacity  of  a 
testator  is  in  issue.  His  statements  are  admitted  to  illustrate 
his  mental  capacity.'"     Rational,  intelligent  statements  in  re- 

9  Consolidated  Traction  Co.  v.  Lambertson,  60  N.  J.  Law,  452,  38 
Atl.  683;  Hardin  v.  Railway  Co.  (Tex.  Civ.  App.)  88  S.  W.  440;  Bred- 
lau  V.  York,  115  Wis.  554,  92  N.  W.  261. 

10  It  has  been  laid  down  that  there  are  two  conditions  to  the  ad- 
missibility of  declarations  of  this  sort:  "One  is  that  the  matters  tes- 
tified of  should  be  sufliciently  near  in  point  of  time  so  that  the  tes- 
timony may  be  of  value  in  determining  the  question  which  is  directly 
in  issue.  Another  proper  limitation  is  that  the  testimony  should 
appear  to  have  some  natural  hearing  upon  the  mental  condition  of 
the  person,  or  his  intention,  at  the  particular  time  which  is  imme- 
diately involved  in  the  issue."  Lane  v.  Moore,  151  Mass.  87,  90,  23  N. 
E.  828,  21  Am.  St.  Rep.  430.  In  this  case  the  issue  was  as  to  the  va- 
lidity of  a  gift  to  the  defendant  by  plaintiff's  intestate.  Mental  weak- 
ness' and  incapacity  was  alleged.    Declarations  by  the  deceased  three 


262  HEARSAT.  (Ch.  11 

gard  to  business  and  the  affairs  which  occupy  his  mind  lead 
to  an  inference  of  sanity,  while  the  utterance  of  foolish,  un- 
intelligible statements  tends  to  the  opposite  conclusion.  The 
principle  of  the  admissibility  of  statements  of  this  kind  has 
been  extended  to  declarations  of  third  persons  to,  or  in  the 
presence  of,  the  person  whose  mental  capacity  is  in  issue,  upon 
the  theory  that  such  declarations  show  a  "cause  for  a  state  of 
mind  existing  subsequent  to  the  communication."^^  It  is  to  be 
remembered  that  in  these  cases  the  declarations  are  not  ad- 
mitted primarily  to  establish  the  facts  asserted.  The  accuracy 
of  the  statement  is  not  material.  Here  it  is  the  fact  of  the 
making  of  a  statement  which  throws  some  light  upon  the  ques- 
tion at  issue,  and  is  therefore,  under  proper  conditions,  ad- 
mitted. In  many  cases  where  the  validity  of  a  will  is  attacked, 
not  only  is  the  mental  condition  of  the  testator  brought  in  is- 
sue, but  acts  of  fraud,  duress,  or  undue  influence  on  the  part 
of  persons  benefiting  by  the  will.  Declarations  of  the  testator 
in  such  cases  may  be  of  such  a  nature  as  to  bear  as  strongly 
on  the  latter  facts  as  upon  the  mental  condition  of  the  testa- 
tor. The  fact  that  they  do  this  is  no  ground  for  their  exclusion, 
though  the  jury  should  be  instructed  that  they  must  not  be 


months  after  the  time  of  the  alleged  gift,  in  which  he  said,  referring 
to  the  matter,  "What  do  you  think  of  that?"  and  that  "it  was  a 
damnable  thing;  that  he  could  put  Moore  [the  defendant]  through 
for  it,  and  shut  him  up" — were  held  admissible  as  illustrating  the 
condition  of  his  mind.  The  following  cases  illustrate  different  ap- 
plications of  this  same  principle :  Shailer  v.  Bumstead,  99  Mass.  112 ; 
Thorne  v.  Cosand,  160  Ind.  566,  67  N.  E.  257;  Sargent  v.  Burton,  74 
Vt.  24,  52  Atl.  72;  Waterman  v.  Whitney,  11  N.  Y.  157;  Herster  v. 
Herster,  122  Pa.  239,  254,  16  Atl.  342,  9  Am.  St.  Rep.  95 ;  Beaubien  v. 
Cicotte,  12  Mich.  459,  486 ;  Thompson  v.  Ish,  99  Mo.  160,  170,  12  S.  W. 
510,  17  Am.  St.  Rep.  552;  Mooney  v.  Olsen,  22  Kan.  69,  77;  Rambler  v. 
Tryon,  7  Serg.  &  R.  (Pa.)  90,  10  Am.  Dee.  444.  In  Dennis  v.  Weelies. 
51  Ga.  24,  the  declarations  admitted  as  bearing  on  the  mental  capacity 
of  a  testator  were:  "I  have  done  something  I  ought  not  to  have  done. 
I  have  made  my  will,  and  did  not  make  it  as  I  wanted  to.  I  know  I 
did  v/rong,  but  I  could  not  help  it.  Lord  God  Almighty !  whoever 
heard  of  such  a  will?  But  I  can't  change  it."  Declarations  made 
from  one  to  six  years  afterwards  have  been  held  too  remote.  Sanford 
V.  Ellithorp,  95  "n.  Y.  48,  54. 

11  People  V.  Wood,  126  N.  Y.  249,  262,  27  N.  E.  362. 


§  149)  APPARENT   EXCEPTIONS.  2G3 

considered  in  that  light.  It  is  held,  however,  that  they  may  be 
admitted  for  the  purpose  of  showing  the  effect  upon  the  mmd 
of  the  testator  of  the  external  acts  charged  to  have  influenced 
him.^-  This  is  not  going  beyond  the  proof  of  a  mental  state 
or  condition. 


SAME-MARKET  VALUE  AND   REPUTATION. 

149.  Where  statements,  oral  or  written,  indicate  a  quality 
or  characteristic,  the  existence  of  which  is  in  issue, 
they  are  admissible  as  circumstantial  evidence. 

As  illustrations  of  this,  we  have  that  feature  of  a  salable 
article  known  as  "market  value."  Market  value  is  a  thing 
which  is  capable  of  proof,  yet  it  rests,  as  far  as  it  can  be  testi- 
fied to,  upon  statements,  oral  or  written,  made  by  persons  deal- 
ing in  such  articles.  A  witness  may  testify  directly  that  the 
market  value  of  an  article  is  a  certain  sum,  but,  if  inquiry  be 
made  as  to  what  his  statement  is  based  upon,  it  will  almost 
invariably  bring  out  the  fact  that  some  sale,  offer,  or  oral  or 
printed  quotation,  which  he  has  heard  or  read,  is  relied  upon. 
How  far  evidence  of  this  sort  may  be  introduced  is  a  question 
of  some  uncertainty.  It  is  not  hearsay,  in  the  strict  sense. 
The  facts  that  a  sale  took  place,  that  an  offer  was  made,  and 
that  the  market  quotation  was  such  a  figure,  are  distinct  facts, 
upon  which  men  familiar  with  such  matters,  and  whose  busi- 
ness it  is  to  deal  with  them,  are  accustomed  to  rely.  Ac- 
cordingly the  court  is  justified  in  admitting  them  for  the  in- 

12  Cudney  v.  Gudney,  G8  N.  Y.  148.  In  Sliailer  v.  Bumstead,  99 
Mass.  11.3,  126,  Cote,  J.,  says,  referring  to  this  class  of  declarations : 
"All  this  evidence,  under  whatever  view  it  is  admitted,  is  competent 
only  and  always  to  establish  the  influence  and  effect  of  the  external 
acts  upon  the  testator  himself,— never  to  prove  the  actual  fact  or 
fraud  or  improper  influence  in  another."  On  the  same  principle,  dec- 
larations made  by  the  testator,  before  the  making  of  the  will,  as  to  an 
intention  to  dispose  of  the  property  in  the  manner  in  which  the  will 
disposes  of  it,  are  admissible  to  rebut  the  inference  of  the  effect  ol 
external  acts'  charged  as  fraudulent.  Neel  v.  Potter,  40  Pa.  483 , 
Gardner  v.  Frieze,  16  R.  I.  640,  19  Atl.  113. 


-Qi  HEARSAY.  (Ch.  11 

formation  of  the  jury/^  It  is  not  every  offer  or  sale,  however, 
which  will  be  competent.  The  element  of  publicity  which 
gives  importance  to  the  transactions,  as  criterions  of  market 
value  must  be  present.  In  general,  it  may  be  said  that  both 
sales  and  public  oilers  to  purchase  or  sell,  in  places  where  the 
commodities  are  ordinarily  dealt  in,  may  be  proved  as  evi- 
dence of  market  value. ^*     Mere  private  offers,  on  the  other 

13  "That  dealers  are  themselves  guided  in  their  transactions  by 
such  indications  of  the  state  of  the  market  makes  the  fact  one  that 
may  properly  be  considered  in  evidence."  Wells,  J.,  in  Whitney  v. 
Thacher,  117  Mass.  523,  527.  The  admission  of  newspaper  quota- 
tions is  not  universally  conceded.  The  case  of  Cliquot's  Champagne, 
3  Wall.  (U.  S.)  114,  18  L.  Ed.  116,  generally  cited  as  an  authority 
for  the  admissibility  of  such  evidence,  does  not  go  to  this  extent.  All 
that  was  there  admitted  were  price  lists  which  were  testified  to  be 
lists  which  had  been  handed  to  the  witness  by  dealers  of  whom  he 
had  inquired  the  price  of  the  wines  contained  on  the  list.  The  lists 
were  no  more  than  the  statements  of  the  dealers,  and,  the  court  having 
ruled  that  the  price  at  which  the  dealers  sold  the  wine  was  competent 
evidence,  the  prices  named  by  them,  on  inquiry  made,  were,  of  course, 
admissible.  In  Whelan  v.  Lynch,  60  N.  Y.  469,  473,  19  Am.  Rep.  202, 
the  court  refused  to  admit  quotations  on  the  price  of  wool  contained 
in  a  newspaper,  saying:  "It  is  not  plain  how  a  newspaper  contain- 
ing the  price  current  of  merchandise,  of  itself,  and  aside  from  any 
explanation  as  to  the  authority  from  which  it  was  obtained,  can  be 
made  legitimate  evidence  of  the  fact  stated.  Mere  quotations  from 
other  newspapers,  or  informations  obtained  from  those  who  have  not 
the  means  of  procuring  it,  would  be  entitled  to  little,  if  any,  weight. 
The  credit  to  be  given  to  such  testimony  must  be  governed  by  ex- 
trinsic evidence,  and  cannot  be  determined  by  the  newspaper  itself 
without  some  proof  of  knowledge  of  the  mode  in  which  the  list  was 
made  out.  As  there  was  no  such  testimony,  the  evidence  was  entire- 
ly incompetent,  and  should  not  have  been  received."  To  the  same 
effect  is  Norfolk  &  W.  Ry.  Co.  v.  Reeves,  97  Va.  284,  33  S.  E.  606. 

14  Whitney  v.  Thacher,  117  Mass,  523;  Sisson  v.  Railroad  Co.,  14 
Mich.  489,  497,  90  Am.  Dec.  252;  Latham  v.  Shipley,  86  Iowa,  543, 
548,  53  N.  W.  342.  According  to  the  definition  of  "market  value"  ap- 
proved by  the  United  States  supreme  court,  sales  and  offers  for  sale 
are  the  very  elements  making  up  market  value.  The  definition  is 
as  follows :  "The  price  at  which  the  owner  of  the  goods,  or  the  pro- 
ducer, holds  them  for  sale;  the  price  at  which  they  are  fully  offered 
in  the  market  to  all  the  world ;  such  prices  as  dealers  in  the  goods 
are  willing  to  receive,  and  purchasers  are  made  to  pay,  when  the 
goods  are  bought  and  sold  in  the  ordinary  course  of  trade."  Cliquot's 
Champagne,  3  Wall.  (U,  S.)  114,  12r,,  18  L,  Ed.  116;  Muser  v,  Magone, 
155  U,  S.  240,  249,  15  Sup.  Ct.  77,  39  L,  Ed.  135. 


§  149)  APPARENT    EXCEPTIONS.  265 

hand,  are  inadmissible.^'  The  distinction  between  this  class 
of  evidence  and  hearsay  will  be  seen  by  assuming  that  the 
witness  testifying  has  not  himself  heard  the  offer,  but  that  it 
has  been  reported  to  him  that  such  offer  was  made.  Here 
we  would  have  a  case  of  hearsay,  and  he  would  not  be  per- 
mitted to  prove  the  fact,  namely,  that  a  certain  offer  was  made, 
by  testimony  that  X.  told  him  such  was  the  case.^'  There  is 
a  distinction  to  be  noted  between  matter  which  is  brought 
out  by  way  of  qualifying  a  witness  as  competent  to  speak 
upon  the  question  of  market  value,  and  testimony  of  matters 
given  by  a  witness  as  evidence  in  itself  of  value.  It  is  not  es- 
sential that  matters  which  an  expert  considers  in  forming  his 
opinion  should  all  be  admissible  as  independent  evidence.  A 
dealer  in  a  certain  class  of  merchandise  may  derive  much  of  his 
knowledge  from  hearsay,  and  yet  be  competent  to  testify  to 
value.  ^■^ 

With  respect  to  real  estate,  the  prevailing  rule  is  that  offers 
of  purchase  or  sale  and  particular  sales  themselves  are  in- 
admissible, on  the  theory  that  there  is  no  established  market 
for  real  estate,  but  each  particular  piece  is  dependent,  for  its 
value,  upon  many  individual  conditions.^  ^ 


15  Jones  V.  Jones,  120  N.  Y.  589,  603,  24  N.  E.  1016;  Wood  v.  In- 
surance Co.,  126  Mass.  316.  In  Norton  v.  Willis,  73  Me.  580,  the 
court  say  (page  582) :  "There  is  too  much  contingency  and  uncer- 
tainty about  offers  to  buy  and  sell,  to  give  them  importance  as  tests 
of  value,  and  such  evidence  may  be  easily  fabricated.  But  even  to 
this  rule  there  may  be  exceptions,  where  the  offers  are  for  property 
exposed  for  sale  in  open  market  in  public  places." 

16  Kirby  Lumber  Co.  v.  C.  R.  Cummings  Co.  (Tex.  Civ.  App.)  87 
S.  W.  231.  It  was  held  in  this  case  that  a  witness  could  not  testify 
as  to  sales  made  in  Europe ;  his  only  source  of  information  being 
telegrams  and  letters  received  from  his  own  representative  in  Europe. 
The  same  court,  however,  held  that  testimony  based  on  knowledge 
obtained  by  the  witness  from  market  reports  was  admissible.  Texas 
&  P.  R.  Co.  V.  W.  Scott  &  Co.  (Tex.  Civ.  App.)  86  S.  W.  1065. 

17  Laurent  v.  Vaughn,  30  Vt.  90.  95;  Betts  v.  Fruit  Exchange,  144 
Cal.  402,  77  Pac.  993 ;  McCrary  v.  Railway  Co.,  109  Mo.  App.  567,  83 
S.  W.  82. 

18  There  is  ordinarily  no  such  market  for  real  estate  as  to  render 
offers  of  purchase  or  sale  admissible  on  the  question  of  value.  Sharp 
V.  United  States,  191  U.  S.  341.  24  Sup.  Ct.  114,  48  L.  Ed.  211 ;  Loloff 
V.  Sterling,  31  Colo.  102,  71  Pac.  1113;  Watson  v.  Railway  Co.,  57 


266  HEARSAY.  (CTh.  11 

Reputation. 

So,  also,  reputation  rests  upon  what  has  been  thought  and 
said  in  the  community  generally  concerning  the  person  or  fact 
in  question.  It  thus  has  its  basis  in  hearsay.  This  is  no  ob- 
jection, however,  to  its  admission.^®  Reputation  is  a  fact 
which  may  be  testified  to,  and  a  distinction  must  be  made  be- 
tween it  and  the  statements  and  declarations  which  go  to  make 
up  the  sentiment  of  a  community,  and  which  determine  the 
nature  of  such  reputation.  A  witness  would  not  be  permitted 
to  state  what  he  had  heard  A.  or  B.  say  in  regard  to  the 
reputation  of  X.  The  form  which  his  testimony  must  take  is, 
"The  reputation  of  X.  is"  so  and  so,  though  in  his  own  mind 
his  statement  may  rest  upon  what  he  has  heard  A.  and  B. 
say.-° 

Wis.  332,  351,  15  N.  W.  468;  Sherlock  v.  Railroad  Co.,  130  111.  403, 
22  N.  E.  844.  On  the  same  principle  it  was  held  in  Seefeld  v.  Rail- 
road Co.,  67  Wis.  96,  29  N.  W.  904,  that  deeds  containing  recitals  of 
consideration,  and  relating  to  property  in  the  same  neighborhood, 
were  inadmissible  upon  the  question  of  value,  being  mere  hearsay. 
It  would  not  follow,  hoTvever,  that  direct  evidence  of  the  fact  of  the 
sales  by  a  witness  knowing  about  them  would  be  inadmissible.  If 
the  sales  were  fair  sales,  under  proper  conditions  they  might,  upon 
the  principle  stated  in  the  text,  be  admissible. 

19  An  accurate  statement  of  the  tiiie  rule  in  regard  to  this  class  of 
evidence  is  found  in  Walker  v.  Moors,  122  Mass.  501,  504.  See,  also, 
Bank  of  Middlebury  v.  Town  of  Rutland,  33  Vt.  414,  430 ;  Adams  v. 
State,  25  Ohio  St.  584 ;  Hodges  v.  Coleman.  76  Ala.  103,  114.  Drumm- 
Flato  Commission  Co.  v.  Gerlack  Bank,  107  Mo.  App.  426,  81  S.  W. 
503.  Pecuniary  condition  is  one  of  the  matters  as  to  which  general 
reputation  has  been  held  admissible.  Smith  v.  Compton.  67  N.  J. 
Law,  548,  52  A.  386,  15  L.  R.  A.  480.  Competency  of  a  fellow  servant. 
Giordano  v.  Granite  Co.,  3  Pennewill  (Del.)  423,  52  A.  332.  Reputa- 
tion, in  certain  cases,  will  be  excluded  as  hearsay.  See  Handy  v. 
State,  63  Miss.  207,  56  Am.  Rep.  803 ;  Ramsey  v.  Smith,  138  Ala.  333, 
35  South.  325.  Ownership  of  personal  property  cannot  be  so  proved. 
Louisville  &  N.  T.  Co.  v.  Jacobs,  109  Tenn.  727,  72  S.  W.  954,  61  L. 
R.  A.  188. 

20  Com.  v.  Rogers,  136  Mass.  158.  In  Powell  v.  Governor,  9  Ala. 
36,  it  was  held  that  a  witness  called  to  prove  the  value  of  lands  could 
not  be  asked  "what  was  the  estimated  cash  value  put  on  the  lands 
levied,  by  the  neighbors  generally?" 


5§  150-151)       REAL    EXCEPTIONS   TO    GENERAL   RULE. 


267 


REAL   EXCEPTIONS    TO    GENERAL   RULE   AGAINST 

HEARSAY— STATEMENTS    ADMITTED    BECAUSE 

OF   THE  DIFFICULTY   OF    OTHER  PROOF. 

150.  In  certain  cases  the  introduction  of  original  evidence 
is  rendered  extremely  difficult  on  account  of  tlie  na- 
ture of  the  fact  to  be  proved.  In  sncli  cases,  declara- 
tions as  to  tlie  fact,  made  by  persons  who  cannot  be 
witnesses,  are  admitted.  They  are  admitted  because 
they  are  the  best  obtainable  evidence. 

By  "dififiiculty  of  proof"  is  not  meant  that  it  would  be  ex- 
pensive, or  impose  great  hardship  upon  the  party  alleging  the 
fact,  to  hunt  up  the  witnesses  and  have  them  present  at  the 
trial,  but  that  the  nature  of  the  fact  itself,  as,  for  instance, 
that  it  is  an  ancient  fact,  to  which  there  are  no  living  wit- 
nesses, prevents  better  proof  from  being  obtained. 

In  the  language  of  the  court  in  a  leading  English  case,-^ 
the  principle  which  underlies  all  these  exceptions  is  the  same. 
"In  the  first  place,  the  case  must  be  one  in  which  it  is  difficult 
to  obtain  other  evidence ;  for  no  doubt  the  ground  for  admit- 
ting the  exceptions  was  that  very  difficulty.  In  the  next  place, 
the  declarant  must  be  disinterested ;  *  *  *  and,  thirdly, 
the  declaration  must  be  made  before  dispute  or  litigation. 
*  *  *  Lastly — and  this  appears  to  me  one  of  the  strongest 
reasons  for  admitting  it — the  declarant  must  have  had  pecul- 
iar means  of   knowledge,   not   possessed  in   ordinary   cases."' 

Some  of  the  more  prominent  instances  of  this  class  of  ex- 
ceptions are  set  forth  in  the  succeeding  pages. 


SAME— DECLARATIONS   OF  TESTATOR  AS  TO  CONTENTS 

OF   VTILL. 

151.  Where  the  question  is  about  the  contents  of  a  will  which 
has  been  lost,  the  declarations  of  the  testator  as  to  the 
contents    of    his    w^ill    are    admissible. 

In  cases  of  a  lost  or  destroyed  will,  it  frequently  happens 
that  there  is  no  copy  in  existence,  and  no  information  possess- 

81  Sugden  v.  Lord  St.  Leonards,  1  Prob.  Div.  154,  241. 


268  HEARSAY.  (Cb.  11 

ed  by  any  person  as  to  its  contents,  other  than  that  derived 
from  statements  of  the  testator  himself.  To  exclude  testimony 
as  to  these  statements  would  be  to  shut  out  the  only  available 
proof.  The  courts  therefore  hold  that  the  declarations,  though 
hearsay,  are  admissible.^ ^  So  it  is  also  in  the  case  where  a 
testator,  having  made  two  wills,  the  later  of  which  contains  a 
clause  of  revocation,  which  destroys  the  later  one,  and  the  ques- 
tion is  as  to  whether  there  was  an  intention  to  revive  the  first. 
Proof  of  intention  is  at  best  a  difficult  matter,  and,  in  the  case 
of  testamentary  intention,  well-nigh  impossible  to  establish, 
except  by  evidence  of  the  statements  of  the  testator.^ ^  Decla- 
rations of  a  testator  are  also  received  for  other  purposes,  such 
as  to  corroborate  direct  testimony  as  to  a  will  alleged  to  be  a 
forgery,  or  to  have  been  executed  under  undue  influence  or 
force.  ^* 

There  is  a  decided  conflict  between  the  cases  upon  the  sub- 
ject of  the  admission  of  a  testator's  declaration  as  evidence 
against  the  validity  of  a  will.  The  weight  of  authority  is  said 
to  be  against  such  admission  to  show  forgery.  Upon  the  ques- 
tion of  revocation,  however,  there  is  more  tendency  to  make 

2  2  In  Sugden  v.  Lord  St.  Leonards,  1  Prob.  Div.  154,  225,  241,  the 
question  of  the  admissibility  of  declarations  of  a  testator  as  to  the 
will  is  fully  discussed.  See  Mercer's  Adm'r  v.  Mackin,  14  Bush  (Ky.) 
434,  to  the  effect  that  such  declarations  are  admissible,  but  are  not 
alone  sufficient  proof  to  establish  the  will.  The  same  principle  of  ad- 
missibility extends  to  declarations  as  to  what  sheets  of  writing  made 
up  the  will.  Gould  v.  Lakes,  6  Prob.  Div.  1.  It  is  sometimes  provid- 
ed by  statute  that  a  lost  or  destroyed  will  must  be  proved  by  at  least 
two  credible  witnesses.  In  such  a  case  it  has  been  held  that  two  per- 
sons who  have  both  heard  declarations  of  the  testator  as  to  the  con- 
tents of  the  will,  while  they  may  testify  as  to  such  declarations,  do 
not  constitute  two  witnesses,  within  the  meaning  of  the  statute. 
Hatch  V.  Sigman,  1  Dem.  Sur.  (N.  Y.)  519. 

2  3  Pickens  v.  Davis,  134  Mass.  252,  257,  45  Am.  Rep.  322;  In  re 
Johnson's  Will,  40  Conn.  587,  588. 

24  Taylor  Will  Case,  10  Abb.  Prac.  N.  S.  (N.  Y.)  300,  306;  Hoppe  v. 
Byers,  60  Md.  381 ;  Milton  v.  Hunter,  76  Ky.  163 ;  Waterman  v.  Whit- 
ney, 11  N.  Y.  157,  62  Am.  Dec.  71.  In  Ball  v.  Kane,  1  Pennewill  (Del.) 
90,  39  Atl.  778,  a  declaration  by  the  testator,  two  days  after  mak- 
ing the  will,  that  his  wife  and  son  had  made  it,  was  held  admis- 
sible to  show  mental  capacity.  The  evidence  had  so  slight  a  bear- 
ing upon  this  point  that  it  seems  it  might  well  have  been  excluded, 
and  it  certainly  was  inadmissible  on  any  other  groxmds. 


§  152)      REAL  EXCEPTIONS  TO  GENERAL  RULE. 


269 


use  of  the  declaration  as  bearing  upon  intent,  which,  in  turn, 
may  be  of  evidential  value  in  respect  to  the  question  of  revoca- 
tion.25 


SAME— DECLARATIONS   CONCERNING  ANCIENT   OWNER- 
SHIP. 

152.  Declarations  showing  acts  of  ownership,  where  snch  acts 
purport  to  have  been  exercised  at  least  30  years  prior 
to  the  trial,  are  admissible. 

The  declarations  under  this  head  consist  ordinarily  of  state- 
ments in  deeds,  leases,  surveyors'  notes,  maps,  and  other  writ- 
ten instruments.  It  is  not  essential  that  it  be  the  original 
instruments  which  are  offered  in  evidence.  An  authenticated 
copy,  providing  it  was  made  more  than  30  years  prior  to  its 
being  offered,  is  equally  admissible  with  the  original. ^^^  If 
the  copy  is  a  recent  copy,  however,  it  is  not  admissible." 

It  is  a  preliminary  condition  to  the  admissibility  of  such 
instruments  that  they  come  from  proper  custody,  so  as  to  give 
ground  for  believing  them  to  be  authentic,  but,  if  the  custody 
is  sufficiently  shown  to  have  been  proper,  they  are  admissible 
without  any  proof  of  their  execution.^* 

2  5  Throckmorton  v.  Holt,  180  U.  S.  552,  21  Sup.  Ct.  474,  45  L.  Ed. 
663.    See  note  on  this  case  in  15  Harvard  Law  Rev.  149. 

2  6  Bradley  v.  Lightcap,  201  111.  511,  G6  N.  E.  546;  Cochran  v.  Lin- 
ville  Imp.  Co.,  127  N.  C.  386.  37  S.  E.  496. 

2  7  Hamilton  v.  Smith,  74  Conn.  374,  50  Atl.  884. 

2  8  As  illustrative  of  the  application  of  this  exception,  see  Malcom- 
son  V.  O'Dea,  10  H.  L.  Cas.  593,  614-616;  Moore  v.  Cooley,  88  Hun.  66, 
34  N.  Y.  Supp.  624;  Havens  v.  Land  Co.,  47  N.  J.  Eq.  365,  374.  20 
Atl.  497 ;  Quinn  v.  Eagleston,  108  111.  248,  253 ;  Goodwin  v.  Jack,  62 
Me.  414 ;'  Thompson  v.  Brannon,  14  S.  C.  542,  550 ;  Harlan  v.  Howard, 
79  Ky.  373 ;  Williams  v.  Conger,  125  U.  S.  397,  415,  8  Sup.  Ct.  933, 
31  L.  Ed.  778.  Some  of  the  various  forms  of  instruments  which 
have  been  admitted  are  deeds,  In  re  Butrick,  185  Mass.  107,  69  N.  E. 
1044 ;  Kansas  City  v.  Scarritt,  169  Mo.  471,  69  S.  W.  283 ;  old  survey, 
Davis  v:  Clinton.  79  S.  W.  239,  25  Ky.  Law  Rep.  2021 ;  draft  of  a 
survey,  Mineral  R.  &  M.  Co.  v.  Auten,  188  Pa.  568,  41  Atl.  327;  en- 
tries in  books,  Hamershlag  v.  Duryea,  58  App.  Div.  288,  68  N.  Y. 
Supp  1061 ;  partlv  burned  sheets  of  old  record  book  of  French  grants, 
Smyth  V.  Banking  Co.,  93  Fed.  899,  35  C.  C.  A.  646 ;  old  letter  and 
army  pay  roll,  Bell  v.  Brewster,  44  Ohio  St.  690,  10  N.  E.  679 ;  plans 


270  HEARSAY.  (Ch.  11 

The  proof  of  some  act  showing  the  exercise  of  a  right  under 
the  document  or  referable  to  it  is  sometimes  spoken  of  as  a 
requisite  to  the  admissibihty  of  this  class  of  evidence;'"  but 
it  is  not  strictly  a  condition  affecting  its  admissibility,^**  The 
failure  to  prove  such  act  when  it  might  naturally  be  expected 
may  lessen  the  weight  of  the  document,  and  the  proof  of 
some  such  act  may  greatly  strengthen  it ;  but  its  antiquity  and 
production  from  a  proper  source  are  sufficient  to  open  the  door 
for  its  introduction  as  evidence  under  an  exception  to  the 
hearsay  rule.^^ 

What  is  proper  custody  is  a  question  for  the  court  to  deter- 
mine from  the  facts  of  each  particular  case.  In  general,  it 
may  be  said  that  if  the  document  is  in  the  possession  of  some 
person  who,  by  reason  of  his  connection  with  the  subject-mat- 
ter in  question,  might  naturally  have  possession  of  it,  it  is 
sufficient.^- 

The  exception  which  permits  the  instruments  to  be  received 
in  evidence  by  reason  of  their  antiquity  does  not  go  further 
than  to  establish  their  authenticity  prima  facie.  It  is  always 
allowable  to  give  evidence  to  show  that  they  are  not  genuine.^^ 

The  fact  that  the  instrument  offered  is  an  ancient  one  does 
not  affect  its  admissibility,  except  from  the  point  of  authen- 
ticity. Antiquity  is  no  substitute  for  relevancy,  and,  if  the 
document  is  objectionable  as  immaterial,  or  irrelevant,  or  in- 
competent, it  will  not  be  received  merely  because  it  is   an 

and  field  notes  of  surveyor,  Whitman  v.  Shaw,  166  Mass.  451,  44  N. 
E.  .333. 

2  9  Wilson  V.  Simpson,  80  Tex.  279,  283,  16  S.  W.  40. 

3  0  Hodge  V.  Palms,  117  Fed.  396,  54  0.  C.  A.  570. 
31  Malcomson  v.  O'Dea,  10  H.  L.  Cas.  614. 

3  2  See  cases  cited  in  Pickens  v.  Davis,  134  Mass.  252,  45  Am.  Rep. 
322.  As  an  illustration  of  what  is  considered  proper  custody,  the 
following  case  serves:  Upon  a  question  of  title  the  defendants  re- 
lied upon  certain  land  certificates,  which  were  found  among  the  pa- 
pers of  the  deceased  county  surveyor  and  were  produced  by  the  sur- 
veyor's son ;  it  being  shown  that  the  certificates  had  been  sent  by 
one  A.,  the  father  of  the  person  named  in  the  certificates  as  the  own- 
er, to  the  surveyor  for  purpose  of  record.  It  was  held  that  the  cer- 
tificates were  suflaciently  shown  to  have  come  from  the  proper  cus- 
tody.    Ward  V.  Cameron  (Tex.  Civ.  App.)  76  S.  W.  240. 

33  Albright  v.  Jones,  106  Ga.  302,  31  S.  E.  761. 


§  153)      REAL  EXCEPTIONS  TO  GENERAL  RULE.         271 

ancient  document. ^^  The  nature  of  a  deed  or  lease  as  evidence 
is  not  wholly  confined  to  its  hearsay  quality.  If  A.  makes  a 
lease  to  B.,  it  has  the  effect,  even  if  it  does  not  expressly  so 
state,  of  a  statement  that  A.  has  title  as  owner,  and  B.  as  ten- 
ant. So  far  as  it  is  admitted  in  evidence  for  the  force  of  this 
statement,  it  is  hearsay.  But  that  is  not  the  only  effect  it  has. 
The  fact  that  the  lease  is  made  by  A.,  which  appears  at  once 
upon  the  lease  being  conceded  to  be  authentic,  has  a  circum- 
stantial force.  Men  do  not  ordinarily  make  leases  for  amuse- 
ment, nor  unless  they  have  the  right  to  lease  that  to  which 
the  lease  relates.  The  making  of  a  lease  or  deed  is  an  opera- 
tive act,  and  is  circumstantial  evidence  of  that  to  which  the  act 
relates. 

SAME— MATTERS    OF   PEDIGREE. 

153.  Declarations  relating  to  pedigree  are  allowed  wliere 
they  were  made,  before  the  commencement  of  tlie  suit, 
by  a  deceased  person,  provided  the  person  making  them 
was  related  by  blood  to  the  person  to  whom  they  refer, 
or  was  the  husband  or  wife  of  snch  person. 

Much  of  our  knowledge  respecting  facts  of  pedigree  and 
relationship  is  based  upon  the  statements  and  declarations  of 
members  of  the  family.  It  being  a  subject  of  family  concern 
and  interest,  and  there  being  seldom  any  motive  for  misstate- 
ment, declarations  of  this  sort  possess  a  reliability  beyond 
that  possessed  by  ordinary  statements.  Where  the  question 
of  pedigree  is  one  of  some  years  back,  it  is  generally  the  case 
that  there  is  no  living  witness  who  has  personal  knowledge  of 
the  facts,  and  it  therefore  becomes  necessary,  if  any  proof 
at  all  is  to  be  had,  to  resort  to  what  may  be  said  to  be  the 
reputation  in  the  family  concerning  the  facts;  that  is,  what 
■  has  been  handed  down  from  father  to  son,^^  or  to  other  form 

34  King  Y.  Watkins  (C.  C.)  98  Fed.  913. 

3  5  In  Davies  v.  Lowndes,  6  Man.  &  G.  471,  Lord  Denman  discusses 
the  question  of  the  admission  of  a  genealogy  which  had  been  indorsed 
by  a  deceased  member  of  the  family  as  a  correct  account  of  the  family 
origin.  The  document  was  offered  to  show  who  the  grandfather  of 
one  X.  was ;  who  the  father  of  X.  was ;  who  the  paternal  uncles  and 


272  HEARSAY.  (Ch.  11 

of  hearsay  evidence.^°  The  rule  is  very  strict  as  to  the  degree 
of  relationship  which  must  exist  in  order  to  render  the  decla- 

first  cousins  of  X.  were ;  that  X.'s  uncle  Jobn  died  a  bachelor ;  that 
X.'s  uncle  George  had  certain  children  then  living ;  that  a  certain 
marriage  had  taken  place.  It  was  held  that  it  was  admissible  on 
all  these  questions,  which  were  questions  of  pedigree.  Lord  Denman 
says :  "But  the  reason  why  a  pedigree,  when  made  or  recognized  by 
a  member  of  a  family,  is  admissible,  may  be  that  it  is  presumably 
made  or  recognized  by  him  in  consequence  of  his  personal  knowledge 
of  the  individuals  therein  stated  to  be  relations,  or  of  information 
received  by  him  from  some  deceased  member  of  what  the  latter  knew 
or  heard  from  other  members  who  lived  before  his  time."  See  Shrews- 
bury Peerage  Case,  7  H.  L.  Cas.  1,  33,  where  a  pedigree  not  signed 
by  any  member  of  the  family  was  rejected.  Hubbard  v.  Lees,  L.  R. 
1  Exch.  255.  Eastman  v.  Martin,  19  N.  H.  152,  ace.  In  Doe  v. 
Griflin,  15  East,  293,  to  prove  that  X.  died  without  issue.  Lord  Ellen- 
borough  allowed  evidence  from  a  member  of  the  family  that  X.  had. 
when  a  yrnng  man,  gone  abroad,  and  had,  according  to  the  repute 
of  the  family,  died  in  the  West  Indies,  "and  that  she  had  never  heard, 
in  the  family,  of  his  having  been  married."  In  Inhabitants  of  North 
Brookfield  v.  Inhabitants  of  Warren,  16  Gray  (Mass.)  171,  a  framed 
chart,  hanging  on  the  wall,  and  kept  in  the  family  for  a  long  time, 
containing  a  record  of  births,  deaths,  marriages,  and  their  dates, 
was  admitted ;  also,  an  inscription  on  a  tombstone.  In  Jackson  v. 
Boneham,  15  Johns.  (N.  Y.)  22G,  the  question  was  as  to  the  relation- 
ship of  the  plaintifC,  who  claimed  certain  lands,  to  one  Moses  Minner 
or  Minor,  a  soldier,  named  in  letters  patent  of  the  lands.  A  sister 
of  the  plaintifC  was  called,  and  testified,  under  objection,  that  the 
general  opinion  in  the  family  was  that  Moses  Jliner,  a  brother  of  hers, 
was  a  soldier  in  the  New  York  troops,  and  had  been  killed.  It  was 
held  that  this  was  admissible  for  the  purpose  of  showing  his  death, 
and  the  place  where  he  died.  Evidence  that  a  child  was  treated  by  a 
negro  couple  as  their  child  was  held  to  be  admissible  on  the  question 
of  whether  he  was  a  negro.  Loeklayer  v.  Locklayer,  139  Ala.  354,  35 
South.  1008.  See,  also,  as  illustrative  of  the  general  principle  under 
discussion,  Northrop  v.  Hale,  76  Me.  806,  49  Am.  Rep.  615;  Copes  v. 
Pearce,  7  Gill  (Md.)  247,  262 ;  Sitler  v.  Gehr,  105  Pa.  577,  51  Am.  Rep. 
207 ;  Metheny  v.  Bohn,  160  111.  263,  266,  43  N.  E.  380 ;  Doe  v.  Wither- 
spoon,  32  N.  C.  185 ;  De  Haven  v.  De  Haven,  77  Ind.  236 :  Dawson  v. 
Mayall,  45  Minn.  408,  411,  48  N.  W.  12;  Kelly's  Heirs  v.  McGuire,  15 
Ark.  555,  604.  In  Fulkerson  v.  Holmes,  117  U.  S.  389,  397,  6  Sup.  Ct. 
780,  784,  29  L.  Ed.  915,  Justice  Woods  states  the  rule  as  follows: 
"The  rule  is  that  declarations  of  deceased  persons  who  were  de  jure 

3  6  Davies  v.  Lowndes,  6  Man.  &  G.  471;  Inhabitants  of  North 
Brookfield  v.  Inhabitants  of  Warren.  16  Gray  Qlass.)  171 ;  Travelers' 
Ins.  Co.  V.  Cotton  Mills,  85  S.  W.  1090,  27  Ky.  Law  Rep.  653. 


§  153)      REAL  EXCEPTIONS  TO  GENERAL  RULE.         273 

ration  admissible."  Formerly  it  was  thought  that  it  should 
be  confined  to  those  connected  by  blood  only  with  the  family 
to  which  the  pedigree  related,  but  subsequently  it  became  es- 
tablished that  declarations  of  a  husband  or  wife  would  be  ad- 
mitted.^^  Neither  a  wife's  sister,^^  nor  an  old  family  servant/" 
are  included  in  the  rule,  though,  if  the  rule  were  elastic,  and 
thus  adapted  to  the  particular  cases  where  the  facts  showed 
the  necessity  of  its  application,  many  cases  of  old  servants  or 
collateral  relatives  would  come  within  its  principle.  It  has 
been  argued  that  the  principle  of  necessity  upon  which  this 
exception  to  the  hearsay  rule  rests  is  applicable  to  declarations 
of  others  than  members  of  the  family;  e.  g..  to  the  records  of 
a  lodge  of  which  the  deceased  was  a  member.     The  courts 

related  by  blood  or  marriage  to  the  family  in  question  may  be  given 
in  evidence  in  matters  of  pedigree.  *  *  *  A  qualification  of  that 
rule  is  that  before  a  declaration  can  be  admitted  in  evidence  the 
relationship  of  the  declarant  with  the  family  must  be  established  by 
some  proof  independent  of  the  declaration  itself.  *  *  *  But  it  is 
evident  that  but  slight  proof  of  the  relationship  will  be  required, 
since  the  relationship  of  the  declarant  with  the  family  might  be  as 
difficult  to  prove  as  the  veiy  fact  in  controversy." 

37  Connecticut  Mut.  Life  Ins.  Co.  v.  Schwenk,  94  U.  S.  593,  24  L. 
Ed  294  •  Eastman  v.  Martin.  19  N.  H.  152 ;  Games  v.  Crandall,  10 
Iowa,  377.  In  Stein  v.  Bowman.  13  Pet.  (U.  S.)  209,  220,  10  L.  Ed. 
129,  testimony  of  a  witness  that  "he  had  been  in  Hanover,  Germany, 
last  summer,  and  there  heard  from  many  old  persons  of  whom  he  in- 
quired that  the  plaintiff  was  the  brother  of  Nicholas  Stone,  deceased," 
was  excluded  on  the  ground  that  the  declarations  were  not  of  "mem- 
bers of  the  family  who  may  be  supposed  to  have  known  the  relation- 
ships which  existed  in  its  different  branches."  See,  to  the  same  ef- 
fect, Chapman  v.  Chapman,  2  Conn.  347,  7  Am.  Dec.  277. 

38  The  Shrewsbury  Peerage  Case,  7  H.  L.  Cas.  1,  26,  established  the 
principle  that  the  declarations  of  a  wife  as  to  her  husband's  family 
were  admissible.  In  Jewell's  Lessee  v.  Jewell,  1  How.  (U.  S.)  219, 
231,  11  L.  Ed.  108,  the  same  principle  is  applied  to  the  declarations 
of  a  deceased  husband.  But  see  Harland  v.  Eastman,  107  111.  53.5, 
for  some  qualifications  of  the  rule  as  applied  to  husbands. 

3  9  In  Blackburn  v.  Crawfords,  3  Wall.  (U.  S.)  175,  187.  18  L.  Ed. 
186,  the  question  was  whether  A.  was  ever  legally  married  to  X. 
It  was  held  that  the  declaration  of  B.,  a  deceased  sister  of  A.,  as 
to  the  marriage,  was  inadmissible. 

40  Johnson  v.  Lawson,  2  Bing.  86;  Arnold  v.  Auldjo,  5  U.  C.  Q. 
B.  171. 

M'KELV.EV.(2d  ED.)— 18 


274  HEARSAY.  (Ch.  11 

have,  however,  very  generally  confined  the  exceptions  within 
the  narrow  limits  laid  down.*^ 

In  the  application  of  the  rule  admitting  declarations  as  to 
pedigree,  the  first  thing  to  be  determined  is  whether  the  ques- 
tion is  one  of  pedigree.  To  constitute  a  question  of  pedigree, 
there  must  be  involved  a  matter  of  parentage  or  relationship.*^ 
Age,  place  of  birth,  time  of  birth,  time  and  place  of  death, 
are  not  in  themselves  questions  of  pedigree.*^  They  may, 
however,  be  connected  with  questions  of  pedigree  in  such  a 
way  as  to  render  declarations  concerning  them  admissible. 
Place  of  birth  may  be  a  material  circumstance  from  which  an 
inference  may  be  drawn  as  to  whether  A.  was  or  was  not  a 
son  of  B.  Time  of  birth  might  also  throw  light  on  that  ques- 
tion. In  such  case,  declarations  would  be  admitted  to  show 
these  facts.**     Even  in  cases  where  no  question  of  pedigree 

41  Connecticut  Mut.  Life  Ins.  Co.  v.  Schwenli,  94  U.  S.  593,  598,  24 
L.  Ed.  294. 

4  2  In  Eisenlord  v.  Cluni,  126  N.  Y.  552,  563,  27  N.  E.  1024,  12  L. 
R.  A.  836,  pedigree  is  defined  as  including  "descent  and  relation- 
ship," and  again  (page  564,  126  N.  Y.,  and  page  1027,  27  N.  E.  [12 
L.  R.  A.  836]),  it  is  said :  "Upon  questions  of  pedigree  (i.  e.,  in  a  con- 
troversy merely  genealogical),  hearsay  evidence  is  allowed  as  to  the 
time  of  birth  of  a  certain  party,  as  to  a  marriage,  death,  legitimacy 
or  the  reverse,  consanguinity  generally,  and  particular  degrees  there- 
of and  of  affinity." 

43  Town  of  Londonderry  v.  Town  of  Andover,  28  Vt.  416,  427,  was 
a  case  where  it  was  sought  to  bring  place  of  birth  under  the  rule  as  to 
pedigree.  It  was  held  that  it  was  not  a  question  of  pedigree.  So,  al- 
so, Adams  v.  Inhabitants  of  Swansea,  116  Mass.  591.  These  cases  are 
where  it  was  an  independent  question.  Where  the  question  arose  as 
to  whether  the  age  of  a  person  had  been  correctly  stated  in  an  ap- 
plication for  life  insurance,  the  question  was  held  not  to  be  a  question 
of  pedigree.  Connecticut  Mut.  Life  Ins.  Co.  v.  Schwenk,  94  U.  S.  593, 
24  L.  Ed.  294.  In  the  case  of  Kennedy  v.  Doyle,  10  Allen  (Mass.) 
161,  the  question  of  defendant's  age  was  involved,  under  a  plea  of 
infancy,  and  a  baptismal  record  was  allowed  to  be  put  in  evidence ; 
but  this  was  not  because  the  question  was  treated  as  one  of  pedigree, 
but  because  the  entry  was  held  admissible  on  the  ground  that  it 
was  made  in  the  regular  course  of  business,  and  in  performance  of  a 
duty,  by  a  person  since  deceased. 

44  Mason  v.  Fuller,  45  Vt.  29;  Van  Sickle  v.  Gibson,  40  Mich.  170; 
Wise  V.  Wynn,  59  Miss.  588,  42  Am.  Rep.  381.  See  opinion  of  Vice 
Chancellor  in  Shields  v.  Boucher,  1  De  Gex  &  S.  40 — an  elaborate 
discussion  of  this  phase  of  the  question. 


154)      REAL  EXCEPTIONS  TO  GENERAL  RULE. 


275 


is  involved,  it  has  been  held,  in  analogy  to  the  pedigree  cases 
(or  under  the  erroneous  assumption  that  a  question  of  pedi- 
gree was  raised),  that  declarations  and  sometimes  family 
reputation  as  to  facts  of  this  nature  were  admissible." 

154.  KINDS  OF  DECLARATIONS  ADMISSIBLE— The  dec- 
larations embraced  within  this  exception  to  the  hear- 
say rule  include  both  specific,  oral  and  written  declara- 
tions, and  also  general  declarations  which  crystalline 
into  what  is  known  as  family  reputation  or  tradition. 

A  member  of  a  family  who  testifies  to  statements  made  by 
his  father  or  grandfather  with  respect  to  a  matter  of  pedi- 
gree, and  one  who  testifies  what  the  tradition  of  the  family  is 
in  respect  to  the  same  matter,  without  being  able  to  refer 
to  any  specific  declaration,  are  both  equally  testifying  to  hear- 
say. In  matters  of  pedigree,  however,  both  classes  of  hearsay 
are  allowed.  With  respect  to  the  first,  there  is  no  distinction 
made  between  oral  and  written  declarations. 

For  example,  a  recital  of  a  fact  in  a  deed  executed  by  a 
member  of  the  family  is  admissible.  In  such  a  case  as  this  it 
will  be  seen  that  the  same  instrument  may  involve  the  appli- 
cation of  both  the  ancient  document  and  the  pedigree  excep- 
tions to  the  hearsay  rule ;  the  document  going  in  without 
proof  because  of  its  antiquity,  and,  when  admitted,  serving  as 
evidence  of  pedigree  by  reason  of  recitals  contained  in  it.** 

*5  The  case  of  Du  Pont  v.  Davis,  30  Wis.  170,  is  an  illustration  of 
the  extension  of  the  principle  to  a  case  where  no  question  of  pedigree 
was  involved.  The  action  was  ejectment.  Defendant  claimed  that 
one  X.,  a  joint  tenant  with  the  plaintiff,  should  have  been  made  a 
party  plaintiff.  The  plaintiff  was  allowed  to  introduce  evidence  of 
reputation  in  the  family  of  X.  that  X.  was  killed  in  an  explosion, 
on  the  theory  that  the  question  of  death  was  one  of  pedigree.  As  an 
amusing  illustration  of  the  extreme  to  which  the  courts  will  go  in 
the  application  of  a  principle,  the  case  of  Jones  v.  Packet  Co.  (Miss.) 
31  South.  201,  is  worth  citing.  Here  the  question  was  as  to  the  pedi- 
gree of  a  jackass.  In  an  action  for  negligently  causing  his  death, 
it  was  held  that  his  pedigree  might  be  proved  by  testimony  as  to  what 
it  was  reputed  to  be  among  those  who  were  acquainted  with  him. 

46  Jackson  v.  Dunton,  26  Pa.  Super.  Gt.  203 ;  Wilson  v.  Braden, 
56  W.  Va.  372,  49  S.  E.  409,  107  Am.  St.  Rep.  927 ;  Eisenlord  v.  Olum, 
126  N.  Y.  552,  565,  27  N.  E.  1024,  12  L.  R.  A.  836. 


276  HEARSAY.  (Ch.  11 

The  mere  fact  of  antiquity  is  not  sufficient  to  render  state- 
ipcnts  as  to  pedigree,  cont'iined  in  a  document,  admissible. 
The  statements,  to  be  admissible,  must  themselves  satisfy  the 
requirements  of  the  pedigree  rule.*' 

With  respect  to  the  second,  there  are  certain  qualifications 
which  may  be  noticed.  The  reputation  allowed  in  evidence  is 
family  reputation,  and  not  general  reputation ;  and  the  testi- 
mony as  to  reputation  must  come  from  some  one  who  knows ; 
i.  e.,  a  member  of  the  family.*^ 


155.  BY  W^HOM  DECLARATIONS  MUST  BE  MADE— A  dec- 
laration, to  be  admissible,  must  liave  been  made  by  a 
person,  or  the  husband  or  ^ldfe  of  a  person,  related  by 
blood  to  the  family,  -with  Tvhich  the  person,  -whose 
pedigree  is  in  question,  either  is  connected,  or  seeks 
to    connect   himself. 

This  is  a  more  accurate  statement  of  the  rule  in  respect  to 
the  qualifications  of  the  declarant  than  that  contained  in  the 
general  statement  of  the  rule.  It  has  already  been  said  *^ 
that  the  rule  is  a  strict  one  with  reference  to  the  degree  of 
relationship  required,  and  some  cases  have  been  cited  in  illus- 
tration of  this.^*'  The  doctrine  that  declarations  of  a  hus- 
band would  be  received  was  first  laid  down  by  Lord  Erskine 
in  1806.^^  And  the  same  rule  was  applied  to  declarations  of 
a  wife  in  1857.^^    Beyond  this  it  has  never  been  extended.    The 

4  7  Lanier.  Hamilton  &  Co.  v.  Heburd.  123  Ga.  626,  51  S.  E.  632. 

48  Lord  Eldon,  in  Whifelock  v.  Baker.  13  Ves.  .511,  514,  says:  "It 
was  not  the  opinion  of  Lord  Mansfield,  or  of  any  judge,  that  tradi- 
tion, generally,  is  evidence,  even  of  pedigree.  The  tradition  must  be 
from  persons  having  such  a  connection  with  the  party  to  whom  it 
relates  that  it  is  natural  and  likely,  from  their  domestic  habits  and 
connections,  that  they  are  speaking  the  truth,  and  could  not  be  mis- 
taken." \Yhen  one  testifies  to  reputation,  he  testifies  to  hearsay. 
To  permit  him  to  testify  to  another  having  told  him  that  the  reputation 
was  so  andi  so  is,  if  the  expression  may  be  used,  double  hearsay. 
See  Dupoyster  v.  Gagani,  84  Ky.  403,  409,  1  S.  W.  652;  Jackson  v. 
Boneham.  15  Johns.  (N.  Y.)  226. 

4  9  Ante,  p.  272. 

5  0  Ante,  p.  273,  note  37. 

51  Vowles  V.  Young.  13  Ves.  140. 

3  2  Shrewsbury  Peerage  Case,  7  H.  L.  Cas.  1.  26. 


§  155)      REAL  EXCEPTIONS  TO  GENERAL  RULE.         277 

blood  relationship  usually  thought  of  in  connection  with  the 
rule  is  that  between  the  declarant  and  the  person  whose 
pedigree  is  in  question ;  yet  this  is  not  essential.  For  example, 
in  one  case  ^^  the  question  was  whether  A.  could  take  prop- 
erty from  X.,  as  being  the  son  of  Y.,  X.'s  brother.  The  dec- 
larations of  Y.  as  to  A.  not  being  his  son,  but  being  the  illegiti- 
mate son  of  Y.'s  wife,  are  admissible.  Here  is  a  case  where 
the  declaration  of  Y.  is  admitted,  though  it  is  expressly  denied 
that  there  is  any  blood  relation  between  himself  and  the  per- 
son whose  pedigree  is  in  question.  The  rule,  therefore,  may 
perhaps  be  modified  by  saying  that  it  is  sufficient  if  the  declar- 
ant is  related  either  to  the  family  with  which  the  person  in 
question  seeks  to  connect  himself,  or  to  the  person  whose  pedi- 
gree is  in  question.^* 

This  statement  of  the  rule  is,  however,  scarcely  broad 
enough  to  cover  a  case  recently  decided  where  A.,  an  adminis- 
trator, sued  a  savings  bank  to  recover  moneys  deposited  by 
his  intestate,  and  which,  upon  the  passbooks,  were  specified 
as  in  trust  for  her  two  sons,  whose  names  were  given.  A. 
claimed  that  his  intestate  never  had  any  sons  and  that  the 
names  were  fictitious.  Witnesses  were  allowed  to  testify  to 
declarations  made  by  A.'s  intestate  to  them  to  the  effect  that 
she  had  not  and  never  had  had  any  children.^^ 

It  will  be  seen  that  here  there  was  no  person  whose  pedigree 
was  in  question,  and  that  there  was,  therefore,  no  foundation 
of  relationship  for  the  admission  of  the  statement.  Yet  the 
principle  upon  which  this  exception  is  founded  seems  applicable 
to  this  case.  While  there  was  no  person  in  question  who  was 
connected  with,  or  who  sought  to  connect  himself  with,  the 

5  3  Craufurd  v.  Blackburn.  17  Md.  49,  77  Am.  Dec.  323.  The  prin- 
ciple has  also  been  extended  to  the  case  where  the  question  re- 
lated to  the  paternity  and  relationship  of  an  illegitimate  child,  and 
declarations  of  a  man  and  wife  who  had  adopted  the  child  and  raised 
it  were  held  to  be  admissible.     Alston  v.  Alston,  114  Iowa,  29,  86 

N.  W.  55. 

5-t  The  point  as  to  the  relationship  necessary  to  render  declarations 
as  to  pedigree  admissible  is  discussed  in  a  note  in  20  Harvard  Law 
Rev.  142. 

5  5  Washington  v.  Bank  for  Savings,  171  N.  Y.  166,  63  N.  E.  831,  89 

Am.  St.  Rep.  800. 


278  HEARSAY.  (Ch.  11 

family,  yet  there  was  a  question  raised  by  the  defendant  as  to 
whether  any  such  person  existed,  and  the  declarations  which 
negatived  the  existence  of  such  person,  made  by  the  one 
with  whom  the  relationship  was  in  question,  might  well  be  re- 
ceived. Where  the  question  came  up  as  to  the  admission  of 
the  declaration  of  a  sister  of  the  mother  of  an  illegitimate  son, 
it  was  held  not  admissible.^*'  Here  we  have  an  instance  where 
the  declarant  is  a  blood  relation  of  the  person  whose  pedigree 
is  in  question,  but  not  related  to  the  family  with  which  he  seeks 
to  connect  himself.  This,  however,  does  not  show  that  the 
declaration  of  a  sister  would  not  be  admitted  if  a  case  of  legiti- 
macy were  prima  facie  established.  The  exclusion  was  prob- 
ably on  the  ground  that  the  other  evidence  showed  the  son 
to  be  illegitimate,  and  that,  an  illegitimate  person  having 
no  family,  no  question  of  pedigree  could  arise.^^  The  basis 
for  the  distinction  between  proving  pedigree  by  a  member  of 
the  family,  and  by  a  stranger  who  knows  of  the  family  repu- 
tation, seemingly  lies  in  the  greater  guaranty  of  truth  which 
the  family  associations  give.^^  In  some  cases  a  person  who 
had  lived  in  the  family  for  a  long  time  as  a  servant  or  friend 
might  have  equal  facilities  for  knowing  the  facts  of  family 
history  with  a  member  of  the  family.  The  drawing  of  a  strict 
line  such  as  that  mentioned  in  the  statement  of  the  rule  in 
such  a  case  might  operate  to  shut  out  valuable  evidence,  and 
evidence  as  worthy  of  credit  as  any  which  might  come  from  a 
member  of  the  family.    On  the  whole,  however,  better  results 


5  6  Oranford  v.  Blackburn,  17  Md.  49,  77  Am.  Dee.  323. 

5  7  The  arbitrary  nature  of  the  rule  is  shown  by  this  refusal  to 
apply  it  in  cases  where  the  question  of  pedigree  arises  In  respect  to 
an  illegitimate  child.    Doe  v.  Barton,  2  Moody  &  R.  28. 

58  Speaking  of  the  rule  in  this  aspect,  Swift,  C.  J.,  says  in  Chap- 
man V.  Chapman,  2  Conn.  347,  349,  7  Am.  Dec.  277,  "The  declaration 
must  be  from  persons  having  such  a  connection  with  the  party  to 
whom  it  relates  that  it  is  natural  and  likely,  from  their  domestic 
habits  and  connections,  they  are  speaking  the  truth,  and  cannot  be 
mistaken.  Bull,  N.  P.  p.  294.  So  hearsay  is  good  evidence  to  prove 
who  is  my  grandfather,  when  he  married,  what  children  he  had,  etc., 
of  which  it  is  not  reasonable  to  presume  I  have  better  evidence.  So 
to  prove  my  father,  mother,  cousin,  or  other  relation  beyond  the  sea, 
dead,  and  the  common  reputation  and  belief  of  it  in  the  family  gives 
credit  to  such  evidence." 


§§  156-157)       REAL    EXCEPTIONS   TO    GENERAL   RULE.  279 

are  probably  accomplished  by  the  application  of  a  strict  rule 
than  would  be  the  case  were  the  matter  left  with  indefinite 
limitations.^®  The  question  of  pedigree  is  not  necessarily  one 
of  ancient  matters/*'  though  it  is  generally  so  treated,  and  the 
instances  of  the  use  of  hearsay  evidence  in  respect  thereto 
commonly  relate  to  ancient  facts.  This  may  be  accounted  for 
by  the  fact  that,  in  matters  of  recent  date,  better  evidence  is 
at  hand,  and  self-interest  compels  its  introduction. 


156.  PROOF    AS    TO    DECLARANT'S    CONNECTION    TVITH 

FAMILY— The  question  of  whether  or  not  the  person 
whose  declaration  is  sought  to  be  introduced  is  a,  mem- 
ber of  the  family,  within  the  meaning  of  the  rule,  is  a 
preliminary  question  of  fact  for  the  court. 

157.  Such   family   connection   need  be   shown  only   by   prima 

facie  proof. 

If  a  declaration  as  to  pedigree  be  offered,  the  witness  tes- 
tifying to  the  declaration,  or  some  other  witness,  must  be  able 
to  testify  also  as  to  the  fact  of  the  deceased  declarant's  rela- 
tionship to  the  family.  This  is  preliminary  to  the  receiving 
of  the  declaration.®^  The  fact  of  relationship  may  be  dis- 
puted, in  which  case  cross-examination  of  the  witness  might 
properly  be  allowed  as  to  this  point.  This  question  is  one  of 
fact  for  the  court  to  determine,  and  it  is  largely  in  the  dis- 
cretion of  the  court  as  to  just  how  far  the  preliminary  in- 
quiry will  be  permitted  to  be  pursued.  Usually  the  examination 
of  the  single  witness  who  is  offered  to  testify  to  the  declara- 

5  9  In  Alston  v.  Alston,  114  Iowa,  29,  86  N.  W.  55,  there  was  a  de- 
parture from  the  prevailing  doctrine,  and  declarations  of  foster 
parents  who  were  in  no  wise  related  to  the  person  whose  pedigree 
was  in  question  were  held  admissible. 

6  0  Judge  Peckham  says  in  Eisenlord  v.  Clum,  126  N.  Y.  552,  563, 
27  N.  E.  1024,  12  L.  R.  A.  836:  "The  exception  regarding  the  ad- 
mission of  hearsay  evidence  in  case  of  pedigree  is  not  confined  to 
ancient  facts,  but  extends  also  to  matters  of  pedigree  which  have 
recently  transpired,  and  the  hearsay  as  to  deceased  witnesses  is  ad- 
mitted as  to  facts  which  have  occurred  in  the  presence  of  living  wit- 
nesses." 

61  Chapman  t.  Chapman,  2  Conn.  347,  349,  7  Am,  Dec.  277. 


280  HEARSAY.  (Ch.  11 

tion  suffices.     The  degree  of  proof  required  is  not  great.     It 
is  sufficient  if  a  prima  facie  case  as  to  relationship  is  made  out. 


158.  EXTENT  OF  RULE— The  rule  as  to  proof  of  pedigree  cov- 
ers cases  Tvhere  the  question  is  raised  as  an  eviden- 
tiary fact  as  ivell  as  those  ^(vhere  it  is  a  main  fact  in 
issue. 

It  is  the  better  opinion  that  a  question  of  pedigree,  whether 
it  be  one  of  the  main  facts  in  issue,  or  an  evidentiary  fact,  may 
be  proved  in  the  same  way.^-  Ordinarily  there  is  no  distinc- 
tion between  the  method  of  proving  a  principal  fact  and  one 
which  is  evidentiary  merely,  and  there  is  no  good  reason  why 
there  should  be  in  this  case.®^ 


159.  ADMISSIBILITY  AS  AFFECTED  BY  TIME  OF  MAK- 
ING DECLARATIONS— A  further  condition  of  the  ad- 
missibility of  declarations  of  this  nature  is  that  they 
must  have  been  made  before  the  beginning  of  the  con- 
troversy in  which  the  question  of  pedigree  arises. 

A  common  form  of  expressing  this  condition  is  that  the  dec- 
larations must  have  been  made  ante  litem  motam.     This  does 
not  mean,  however,  that  it  is  sufficient  if  they  have  been  made  ' 
before  the  commencement  of  the  actual  suit.     As  a  matter  of 
fact,  they  must  have  been  made  before  the  existence  of  the 

6  2  See  Steph.  Dig.  Ev.  art.  31,  for  a  different  statement  of  this  as- 
pect of  the  rule.  The  case  he  cites  does  not  support  his  statement. 
While  there  was  a  question  of  death  involved,  it  was  distinctly  held 
that  there  was  no  question  of  pedigree  either  principally  or  colla- 
terally involved.     AYhittuck  v.  Waters,  4  Car.  &  P.  375. 

6  3  In  Inhabitants  of  North  Brookfield  v.  Inhabitants  of  Warren,  16 
Gray  (Mass.)  171,  it  was  distinctly  held  that  the  exception  extends  to 
cases  where  pedigree  is  collaterally  involved.  The  language  of  the 
court  is  (page  175) :  "Some  of  the  authorities  seem  to  limit  the  com- 
petency of  this  species  of  proof  to  cases  where  the  main  subject  of  in- 
quiry relates  to  pedigree,  and  when  the  incidents  of  birth,  marriage, 
and  death,  and  the  times  when  these  events  hapi>ened,  are  directly 
put  in  issue.  But,  upon  principle,  we  can  see  no  reason  for  such  a 
limitation.  If  this  evidence  is  admissible  to  prove  such  facts  at  all, 
it  is  equally  so  in  all  cases,  whenever  they  become  legitimate  subjects 
of  judicial  inquiry  and  investigation." 


§  160)  REAL   EXCEPTIONS   TO    GENERAL    RULE.  281 

controversy  which  has  given  rise  to  the  suit,  in  order  to  be  ad- 
missible. This  is  a  rule  of  fairness,  and  is  a  necessary  precau- 
tion against  unreliable  and  prejudiced  statements  made  as  the 
result  of  sympathy  or  passion,  or  other  feeling,  or  with  a 
view  to  their  subsequent  use  in  litigation.®* 


SAME—PROOF    OF    AGE    OF    PERSON. 

160.    The   testimony   of    a   person   as   tt»  Ms   own   age,   tliougli 
founded  on  hearsay,  has  always  been  held  admissible. 

Analogous  to  the  rule  allowing  hearsay  upon  questions  of 
pedigree  is  the  rule  as  to  proof  of  age.  The  question  of  age 
may,  from  the  nature  of  the  case  in  which  it  arises,  and  with 
reference  to  the  issue  upon  which  it  becomes  material,  become 
a  question  of  pedigree,  but  ordinarily  it  is  not  a  question  of 
that  kind.®^  Where  it  arises  under  a  plea  of  infancy,  or  upon 
a  prosecution  for  rape,  it  in  no  wise  differs  from  any  other 
fact.  Yet  it  has  always  been  held  that  a  certain  sort  of  hear- 
say, namely,  the  testimony  of  the  person  whose  age  is  in- 
volved, is  admissible.^®  In  fact,  the  practice  of  allowing  this 
testimony  is  very  ancient,  and  dates  back  to  a  period  before 
the  development  of  the  rule  against  hearsay.  It  may  be  said 
to  be  a  practice  which  has  survived  in  spite  of  the  rule.  The 
basis  for  the  admission  of  this  testimony  is  very  much  the  same 
as  in  the  case  of  questions  of  pedigree.  There  is  usually  a 
difficulty  in  bringing  other  proof,  or,  at  all  events,  the  testi- 
er Stein  V.  Bowman,  13  Pet.  209  (U.  S.)  220.  10  L.  Ed.  129;  People  v. 
Fulton  Fire  Ins.  Co.,  25  Wend.  (N.  Y.)  205,  209 ;  Northrop  v.  Hale, 
76  Me.  306,  49  Am.  Rep.  615 ;  Barnum  v.  Barnum,  42  Md.  251,  304. 

6  5  In  Houlton  v.  Mauteuffel,  51  Minn.  185,  53  N.  W.  541,  the  ques- 
tion was  treated  as  a  question  of  pedigree,  though  obviously  not  so. 
GO  Com.  V.  Phillips,  162  Mass.  504,  39  N.  E.  109 ;  Houlton  v.  Mau- 
teuffel, 51  Minn.  185,  53  N.  W.  541;  State  v.  Cain,  9  W.  Va.  559,  569. 
In  the  case  of  an  orphan,  where  it  appeared  her  knowledge  of  her 
own  age  was  obtained  from  a  person  outside  of  her  family,  with 
whom  she  had  lived,  it  was  held  that  the  evidence  was  not  admissible. 
People  V.  Colbath,  141  Mich.  189,  104  N.  W.  633.  It  is  doubtful  if 
this  represents  a  sound  view,  as  from  pi-actical  considerations  it  is 
obvious  that  testimony  of  any  person  as  to  his  own  age  is  about  as 
reliable  as  can  be  obtained. 


282  HEARSAY.  (Oh.  11 

mony  of  the  person  himself  is  the  easy  and  natural  proof. 
A  person  has  a  peculiar  interest  in  his  own  age,  and  is  likely 
to  be  posted  upon  the  point.  His  opportunities  for  acquiring 
knowledge  in  this  direction  are  also  greater  than  those  of  other 
persons,  with  the  exception  of  his  parents  and  immediate  rela- 
tives. His  testimony,  "based  as  it  must  be  on  family  tradition, 
and  fortified  by  his  knowedge  of  himself,"®'^  is  apt  to  be  ex- 
ceptionally accurate.  The  cases  go  to  the  extent  of  allowing 
the  testimony  to  reach  to  the  exact  day  of  birth,  which,  of 
course,  is  hearsay  pure  and  simple. ^^ 

It  is  held  that  a  witness  may  still  give  testimony  of  this 
sort,  although  it  appears  that  all  information  he  has  on  the  sub- 
ject is  derived  from  a  member  of  his  family  who  is  living  and 
within  the  jurisdiction  of  the  court.®^ 


SAME— MATTERS    OF   A   PUBLIC    NATURE. 

161.  Declarations  concerning  matters  of  a.  public  nature, 
"(vlietlier  contained  in  public  documents  or  standard 
books,  are  admissible. 

Before  leaving  the  subject  of  those  matters  which  may  be 
proved  by  declarations  because  of  the  difficulty  of  other  proof, 
reference  should  be  made  to  the  rule  respecting  ancient  facts 
of  a  public  nature.^"  There  is  really  no  rule  of  hearsay  which 
would  exclude  declarations  concerning  such  matters,  provided 
they  be  confined  strictly  to  public  matters.  Most  if  not  all 
such  matters  come  within  the  scope  of  the  principle  of  judicial 
notice,  and  any  source  of  information  which  the  court  con- 
siders reliable,  whether  direct  testimony  or  hearsay,  may  be 
resorted  to.''^    These  matters  are,  however,  usually  treated  as 

6T  Holmes,  J.,  in  Com.  v.  Stevenson,  142  Mass.  466,  468,  8  N.  E.  341. 
68  Id. 

6  9  McCollum  V.  State,  119  Ga.  308,  46  S.  E.  413,  100  Am.  St. 
Rep.  171. 

70  In  Stayner  v.  Burgess  of  Diotwisch.  12  Mod.  86,  it  is  said:  "For 
general  history,  which  relates  to  the  whole  kingdom,  is  proper  to 
be  given  in  evidence  in  a  matter  relating  thereunto ;  and  the  natiu-e  of 
the  thing  requires  it  when  it  cannot  otherwise  be  well  proved."  See, 
also,  McKinnon  v.  Bliss,  21  N.  Y.  206,  215. 

71  Peyroux  v.  Howard,  7  Pet.  (U.  S.)  324,  342,  8  L.  Ed.  700.     In 


§  162)      KEAL  EXCEPTIONS  TO  GENERAL  RULE.         283 

exceptions  to  the  hearsay  rule/-  and  it  is  possible  tha-t  the  scope 
of  the  exceptions  is  broader  than  could  be  explained  upon 
the  theory  of  judicial  notice  alone.  This  exception  is  some- 
times spoken  of  as  being  confined  to  ancient  matters  of  a  pub- 
lic nature.''^  The  authorities  do  not  so  restrict  it.'^*  They  are, 
however,  strict  in  admitting  only  books  and  documents  of 
recognized  public  authority.'^  ^  ' 

y 
) 

SAME— STATEMENTS    ADMITTED    BECAUSE    OF    CIRCUM- 
STANCES   GIVING    THEM    SPECIAL    RELIABILITY. 

162.  There  are  certain  matters  ^vliicli  have  less  of  the  ele- 
ment of  difficulty  of  proof  connected  ^vith  them  as  rea- 
sons for  their  admission  than  that  of  special  relia- 
bility, and  these  form  another  class  of  exceptions  to 
the   hearsay  rule. 

That  there  is  no  definite  rule  which  admits  matters  merely 
because  they  have  some  guaranty  of  reliability  is  quite  true, 
and  in  dividing  the  exceptions  to  the  hearsay  rule  into  two 

McKinnon  v.  Bliss,  21  N.  Y.  206,  it  is  held  that  such  facts  must  be  put 
before  the  jury  by  the  proof  being  adduced,  "not  only  in  order  that 
the  jury  may  all  be  equally  possessed  of  the  evidence  from  which 
their  conclusions  are  to  be  drawn,  but  that  the  facts  upon  which  their 
conduct  is  based  may  be  known." 

7  2  Steph.  Dig.  Ev.  art.  32. 

7  3  Morris  v.  Lessee  of  Harmer's  Heirs,  7  Pet.  (U.  S.)  554,  557,  8  L. 
Ed.  781. 

7  4  See  cases  cited  in  notes  65-71. 

7  6  For  example,  Appleton's  Encyclopedia  was  refused.  Whiton  v. 
Insurance  Co.,  109  Mass.  24.  It  has  also  been  held  that  an  article  in 
a  newspaper  published  many  years  before  was  inadmissible  to  show 
a  matter  of  historical  interest.  City  of  Hartford  v.  Maslen,  76  Conn. 
599,  57  Atl.  740.  It  has  been  held,  however,  that  general  reputation 
as  to  a  historical  fact  or  matter  of  public  and  general  interest  may 
be  introduced.  Upon  a  question  as  to  who  the  trustees  of  the  city 
of  Monterey  were  in  1859,  evidence  was  allowed  that  certain  persons 
were  commonly  reputed  to  be  the  trustees  at  that  time.  City  of 
Monterey  v.  Jacks,  139  Cal.  542,  73  Pac.  436.  See,  also,  Morris  v. 
Edwards,  1  Ohio,  189,  209.  In  the  case  of  real  estate,  where  the 
ownership  is  one  of  long  standing,  it  has  been  held  that  it  may  be 
proved  by  testimony  as  to  the  general  reputation  in  the  neighbor- 
hood.    Rice  V.  Melott,  82  Tex.  Civ.  App.  426,  74  S.  W.  935. 


1^S4  HEARSAY.  (Ch.  11 

classes  cvis  not  intended  to  claim  any  hard  and  fast  dividing- 
line  betweei:  them,  nor  the  exclusive  presence  of  the  distin- 
guishing feature  in  the  exceptions  falling  within  the  respective 
classes.  The  division  has  been  made  merely  as  a  matter  of 
convenience,  and  for  the  reason  that  in  the  one  class  the  one 
element  predominates,  while  in  the  second  class  the  other  is 
most  prominent. 


SAME— DECLARA't  IONS     MADE     UNDER     OATH. 

163.    There  are  two  classes  of  declarations  under  oatli  whiclt 
have    been   admitted: 

(a)  Statements  of  witnesses  taken  under  oath  in  form  pre- 

scribed by  statute,  for  the  purpose  of  use  in  the  par- 
ticular trial. 

(b)  Statements  made  under  oath  by  persons  in  other  actions 

or  proceedings,  or  at  other  trials. 

The  administration  of  the  oath  is  the  guaranty  in  every 
case  which  the  court  has  of  the  truthfulness  of  the  statements 
made  by  the  witnesses.  If  a  person  has  been  previously  sworn, 
and  has  testified  to  facts  which  become  material  at  a  later  time, 
under  certain  circumstances  his  previous  sworn  testimony  is 
held  admissible.  Two  classes  of  cases  are  mentioned  above, 
but  in  regard  to  the  first  little  need  be  said ;  for  the  practice  as 
to  the  taking  of  depositions  before  trial,  and  the  conditions 
under  which  they  may  be  taken,  are  largely  governed  by  statu- 
tory provisions.  It  is  conceived,  too,  that  they  do  not  in  any 
sense  form  an  exception  to  the  hearsay  rule,  or  have  any  con- 
nection with  it.  After  the  action  has  been  begun,  any  depo- 
sitions allowed  to  be  taken  stand  on  the  same  footing  as  testi- 
mony taken  at  the  trial  It  is  virtually  a  beginning  of  the 
trial  for  the  purpose  of  convenience.  It  is  true  that  no  jury 
is  summoned,  and  the  testimony  of  the  witnesses  is  taken  out  of 
court;  but  they  are  taken  for  the  particular  purpose  of  the 
suit,  and  with  a  view  to  the  issues  arising  therein.  They  are 
taken  in  contemplation  of  being  read  before  the  jury.  They 
are  admitted,  not  because  they  are  declarations  material  to 
tihe  issues  and  having  the  sanctity  of  an  oath,  but  because  they 
have  been  taken  in  the  suit  and  as  a  part  of  the  trial  of  the 


§  164)  EEAL   EXCEPTIONS   TO    GENERAL    RULE.  2S5 

issues.  Because  of  the  necessities  of  the  situation,  and  under 
the  provisions  of  the  statutes,  the  condition  of  physical  pres- 
ence before  the  jury,  incident  to  the  examination  of  ordinary 
witnesses,  is  dispensed  with. 

The  other  class  of  declarations  consists  of  statements  made 
tmder  oath  by  persons  in  other  actions  or  proceedings,  or  at 
other  trials.  Such  declarations  are  held  to  be  admissible 
where  they  are  material  to  the  issues,  and  under  certain  con- 
ditions with  respect  to  the  impracticability  of  obtaining  the 
personal  presence  of  the  witnesses  who  have  made  them.  They 
are  real  exceptions  to  the  hearsay  rule. 


164.    CONDITIONS    UNDER    WHICH    DECIiARATIONS    UN- 
DER    OATH    ARE    ADMISSIBLE— Declarations    under 
oatli  are  admissible: 

(a)  When  the  witness  who   made  them  is  dead; 

(b)  Or  is  physically  or  mentally  incapable  of  being  present 

at  the  trial; 

(c)  Or  is  kept  ont  of  the  way  by  the  adverse  party; 

(d)  Or,  in  civil  cases,  is  out  of  the  jurisdiction  of  the  co^lrt 

or  cannot  be  found. 
QUALIFICATIONS— Provided  the  following  conditions  exist: 

(a)  The   person   against   whom    the    evidence   is    to    be    given 

must  have  had  the  right  and  opportunity  to  cross-ex- 
amine   the   witness   when   his    examination  was    taken. 

(b)  The  questions  in  issue  must  be   the  same  as  in  the  pro- 

ceeding in  which   the   testimony   was   taken. 

(c)  The  proceeding,  if  civil,  must  be  between  the  same  par- 

ties or  their  representatives  in  interest;  if  criminal, 
must  relate  to  the  same  crime  and  be  against  the  same 
person. "6 

The  above  specification  of  the  conditions  under  which  evi- 
dence in  a  former  proceeding  is  received  shows  that  this  excep- 
tion to  the  hearsay  rule  is  founded,  not  only  upon  the  special 
reliability  given  by  the  fact  of  the  declarations  having  been  un- 
der oath^  but  also  upon  the  impossibility  or  difficulty  of  procur- 
ing the  direct  testimony  of  the  witness.  The  exception  is,  there- 
fore, in  some  degree  referable  to  the  class  of  exceptions  first 

7c  Steph.  Dig.  Ev.  (Chase's  Ed.)  art.  32,  and  notes ;  1  Greenl.  Ev. 
(15th  Ed.)   §§  ia3-168;   Ephraims  v.  Murdook,  7  Blnckf.  (Ind.)  10. 


286  HEARSAY.  (Gh.  11 

discussed  in  this  chapter.  The  prominent  feature,  however,  of 
this  class  of  declarations  is  the  sanctity  of  the  oath,  and  this 
justifies  its  being  placed  in  the  second  class.'' ^  The  fact  of  the 
decease  of  the  person  whose  declarations  are  sought  to  be 
proved  in  this  and  the  following  exceptions  under  this  class  has 
been  so  important  a  feature  that  these  exceptions  have  some- 
times been  classed  together  as  "Declarations  of  Deceased  Per- 
sons," and  spoken  of  as  admissible  on  that  ground.''^  As  the 
fact  of  the  decease  of  the  declarant  is  not  the  ground  of  admis- 
sibility, but  only  (in  some  jurisdictions)  a  necessary  condition, 
I  have  preferred  to  classify  them  separately,  according  to  the 
nature  of  the  circumstances  giving  them  that  special  credibility 
which  renders  them  admissible. 

Reference  to  the  rule  above  stated  with  respect  to  the  admis- 
sibility of  declarations  under  oath  shows  that,  aside  from  the 
disabilities  mentioned  as  necessary  conditions  to  the  use  of  the 
declarations,  there  are  certain  requirements  which  must  be  met 
before  the  testimony  is  available.  Of  these  requirements,  those 
with  respect  to  the  identity  of  parties  and  issues  upon  the  trial 
where  it  is  sought  to  use  the  testimony  with  those  upon  the 
trial  where  it  was  originally  given  [i.  e.  (b)  and  (c)]  are  found- 
ed upon  the  first  requirement  named,  to  wit,  that  the  party 
against  whom  the  testimony  is  offered  must  have  had  the  right 
and  opportunity  to  cross-examine.  The  right  of  cross-examina- 
tion is  the  prominent  feature  of  our  system  of  trials.  It  is  uni- 
versally conceded  to  every  litigant,  and  regarded  as  an  indis- 
pensable prerequisite  to  the  validity  of  all  testimony.''^    This  is, 

7  7  Wright  V.  Tatham,  1  Adol.  &  E.  3,  20.  In  this  case  A.  brought 
ejectment  against  X.  X.  claimed  under  a  will,  and  offered  the  short- 
hand notes  of  the  testimony  of  one  of  the  attesting  witnesses  to  the 
will,  given  at  a  previous  trial  where  A.  and  X.  were  both  parties; 
the  witness  having  since  died.  It  appeared  that  there  was  another 
attesting  witness,  who  was  alive  and  within  the  jurisdiction  of  the 
court,  and  who  might  have  been  called.  It  was  contended  that,  un- 
der these  circumstances,  the  testimony  of  the  deceased  witness  could 
not  be  given.  The  court  held,  however,  that  there  was  no  question  of 
best  evidence  involved,  and  that  the  testimony  of  the  deceased  wit- 
ness, being  under  oath,  was  equal  in  degree  to  the  direct  testimony  of 
the  living  witness. 

78  Steph.  Dig.  Ev.  (Chase's  Ed.)  arts.  25-31. 

7  9  Upon  the  question  whether  a  woman  had  become  the  lawful 


§  164)      REAL  EXCEPTIONS  TO  GENERAL  RULE.         287 

therefore,  laid  down  as  the  first  condition  under  which  previous 
testimony  will  be  allowed  to  be  used:  If  the  party  against 
whom  it  is  offered  had  the  right  of  cross-examination,  he  can- 
not complain  of  the  use  of  the  testimony ;  for  it  is  to  be  pre- 
sumed that  he  protected  himself  fully,  under  that  right,  against 
false  or  prejudiced  evidence.  It  may  be  that  the  witness  was 
not  cross-examined  at  all.  In  such  case,  if  the  right  and  oppor- 
tunity existed,  the  failure  to  exercise  it  does  not  prevent  the 
use  of  the  testimony.^*^  It  is  sufficient  if  the  party  could  have 
cross-examined  the  witness  if  he  had  wished  to.  His  reasons 
for  failure  to  exercise  his  right  are  immaterial.  It  must  ap- 
pear, however,  very  plainly  that  the  opportunity  was  actually 
possessed  in  cases  where  it  was  not  exercised,  and  in  cases 
where  it  was  exercised  it  must  be  plain  that  it  was  exercised  on 
behalf  of  the  party  against  whom  the  testimony  is  offered.®^ 
Nor  is  it  any  objection  to  the  admission  of  previous  testimony 
that  facts  have  arisen  since  which  would  have  qualified  the  par- 
ty against  whom  the  testimony  is  offered  to  have  cross-ex- 
amined in  better  shape ;  nor  that  the  testimony  was  open  to  ob- 
jection, because  of  insufficient  qualification  of  the  witness,  but 
was  admitted  because  the  objection  was  not  made.^^ 

wife  of  a  decedent  under  the  practices  and  ceremonials  of  the  Mor- 
mon Church,  it  was  held  that  the  court  could  not  consider  evidence 
introduced  before  a  committee  of  the  United  States  Senate.  In  re 
Parks'  Estate,  29  Utah  257,  81  Pac.  83.  And  where  ex  parte  affidavits 
were  filed  upon  a  motion  for  a  subpoena  duces  tecum,  it  was  held  they 
were  not  admissible,  there  having  been  no  opportunity  for  cross-ex- 
amination. Phoenix  Nat.  Bank  v.  Taylor,  67  S.  W.  27,  23  Ky.  Law 
Rep.  2307. 

8  0  Bradley  v.  Mirick,  91  N.  Y.  293 ;  Walbridge  v.  Knipper,  96  Pa.  48. 
In  Walbridge  v.  Knipper,  the  court  say,  in  reference  to  this  subject : 
"The  fact  that  his  testimony  before  the  arbitrators  had  not  been  re- 
duced to  writing  would  not  have  been  a  valid  objection,  nor  the  ad- 
ditional circumstance  that  the  defendant  was  not  present  and  did  not 
hear  him  testify,  provided  he  had  an  opportunity  of  being  present  and 
neglected'  to  avail  himself  of  it." 

81  Thus,  in  Jackson  v.  Crilly,  16  Colo.  103,  26  Pac.  331,  it  was  held 
that  a  recital  in  the  record  of  the  previous  proceedings  to  the  effect 
that  "the  respective  counsel  in  this  case  were  present,"  where  it 
was  neither  conceded  nor  proved  "in  whose  behalf,  in  what  capaeitj', 
nor  for  what  purpose  the  respective  counsel  were  present,"  was  not 
sufficient  to  admit  the  testimony. 

82  Wallach  v.  Railway  Co.,  105  App.  Div,  422,  94  N.  T.  Supp.  574. 


288  HEARSAY.  (Ch.  11 

Referring  generally  to  the  conditions  under  which  testimony 
of  this  character  is  admissible,  there  is  a  certain  orderly  meth- 
od of  procedure  which  must  be  observed.  A  certain  founda- 
tion must  be  laid  by  preliminary  proof  before  the  testimony  be- 
comes available.  This  is  so  with  respect  to  any  or  all  of  the 
elements  which  enter  into  the  question  of  admissibility.  It  must 
appear  satisfactorily  to  the  court,  by  testimony  or  otherwise, 
that  one  or  more  of  the  disabilities  exist,  that  there  was  suffi- 
cient opportunity  of  cross-examination,  that  the  questions  in 
issue  were  substantially  the  same,  and  that  there  is  sufficient 
identity  with  respect  to  the  parties.  The  person  offering  the 
testimony  must  make  it  evident  that  he  is  in  good  faith  resort- 
ing to  the  previous  testimony  only  because  the  witness  is  not 
at  the  time  available. ^^ 

A  mere  statement  of  counsel  is  not  sufficient.^* 
In  one  case,  at  least,  a  further  condition  has  been  laid  down, 
to  wit,  that  the  previous  court  must  have  had  jurisdiction.^^ 


165.  IDENTITY  OF  PARTIES— The  courts  enforce  strictly 
tlie  rule  that  the  issues  must  be  between  the  same  par- 
ties on  both  trials,  although  there  is  some  elasticity 
allowed  with  respect  to  the  relative  positions  of  the 
parties. 

While,  in  a  general  way,  it  may  be  said  that  the  parties  must 
be  the  same  upon  the  two  trials,  ^"^  it  is  not  necessary  that  the 

In  this  case  the  court  declined  to  shut  out  expert  testimony  given  on 
a  previous  trial,  upon  the  objection  that  the  witness  was  not  quali- 
fied ;  such  objection  not  having  been  made  at  the  time  the  testimouy 
was  originally  introduced. 

83Heminway  &  Sons  Silk  Co.  v.  Torter.  04  111.  App.  G09 ;  Wabasli 
R.  Co.  V.  Miller,  158  Ind.  174,  61  N.  E.  lOO.j ;  Welch  v.  Railroad  Co., 
182  Mass.  Si,  64  N.  E.  695 ;  Siefert  v.  Siefert,  123  Mich.  407,  82  N.  W. 
511. 

84  Houston  &  T.  C.  Ry.  Co.  v.  Smith  (Tex.  Civ.  App.)  51  S.  W.  506. 

8  5  Deering  v.  Schreyer,  88  App.  App.  457,  85  N.  Y.  Supp.  275. 

8  6  The  following  illustration  may  be  cited:  A.  was  the  owner  of 
two  pieces  of  land.  lie  sold  one  to  B.  A.  audi  B.  were  then  both 
ousted  of  pos.session  by  X.  Both  brought  actions  of  ejectn)ent  against 
X.  Evidence  was  introduced  in  the  action  of  A.  v.  X.,  and  A.  re- 
covered a  verdict.  In  the  action  of  B.  v.  X.,  X.  submitted  to  a  sim- 
ilar verdict,  saying  he  would  not  trouble  the  court  to  hear  the  evi- 


g  165)  REAL   EXCEPTIONS   TO    GENERAL    RULE.  289 

suit  be  brought  in  precisely  the  same  way,  or  that  the  parties 
plaintiff  and  defendant  be  Hterally  identical.  All  that  is  re- 
quired is  that  the  issues  be  raised  between  the  same  parties, 
and  that  such  parties  be  in  the  same  position,  with  respect  to 
the  use  of  the  witnesses'  testimony  and  the  effect  it  has  on  the 
issues,  as  they  were  on  the  former  trial.  It  may  happen  that 
in  the  later  trial  the  positions  of  the  parties  are  changed,  and 
that  he  who  was  plaintiff  is  defendant,  or  vice  versa ;  or  it  may 
happen  that  the  plaintiff  or  defendant  was  a  joint  party  with 
others  on  the  first  trial,  and  on  the  second  stands  alone.  Such 
variances  as  these,  provided  they  do  not  affect  the  issues,  are 
not  sufficient  to  shut  out  the  testimony  of  deceased  witnesses." 
The  rule  extends  to  parties  identified  in  interest  with  the  par- 
ties on  the  former  trial,  either  as  privies  in  blood,  in  law,  or 
estate.^*  An  executor  or  administrator  is  thus  identified  as  a 
privy  in  law.^"  A  remainderman  or  reversioner  is  privy  in  es- 
tate,'^*' though  one  who  holds  a  parcel  of  the  same  property 


clence  again,  as  it  would  be  the  same.  Subsequently  B.  was  again 
ousted  by  X.,  and  brought  another  action  of  ejectment.  Upon  the 
trial  he  offered  the  testimony  of  a  witness,  since  deceased,  who  had 
testified  on  the  trial  between  A.  and  X.  The  court  held  it  inadmis- 
sible. Doe  V.  Earl  of  Derby,  1  Adol.  &  E.  783.  See,  also,  for  illus- 
trations of  the  same  principle,  Melvin  v.  Whiting,  7  Pick.  (Mass.) 
79 ;  Norris  v.  Monen,  3  Watts  (Pa.)  465 ;  Hughes  v,  Clark,  67  Ga.  19 ; 
Marshall  v.  Hancock,  SO  Cal.  82,  22  Pac.  61. 

8  7  Wright  V.  Tatham,  1  Adol.  &  E.  3,  19;  Wright  v.  Cumpsty,  41 
Pa.  102 ;  Clealand  v.  Huey,  18  Ala.  343.  On  the  later  trial,  if  there 
are  new  parties  joined  who  were  not  parties  on  the  former  trial,  the 
testimony  cannot  be  used.  While  a  reduction  in  the  number  of  par- 
ties on  the  later  trial  does  not  affect  the  rule,  an  increase  makes  it 
inapplicable,  Orr  v.  Hadley,  36  N.  H.  575,  581 ;  unless  the  new  party 
added  is  privy  with  the  original  parties,  Goodlett  v.  Kelly,  74  Ala.  213, 
220 ;  or  unless  the  evidence  is  confined  in  its  effect  to  the  party  alone 
who  was  a  party  on  the  previous  trial,  Stewart  v.  Bank,  43  Mich.  257, 
5  N.  W.  302. 

8  8  Jackson  v.  Dawson,  15  Johns.  (N.  Y.)  539. 

89  0sborn  v.  Bell,  5  Denio  (N.  Y.)  370,  377,  49  Am.  Dec.  275; 
Indianapolis  &  St.  D.  R.  Co.  v.  Stout,  53  Ind.  143,  158;  Hutchings  v. 
Corgan,  59  111.  70. 

90  Jackson  v.  Dawson,  15  Johns.  (N.  Y.)  539.  But  a  person  who, 
as  the  next  friend  of  infants,  brings  a  suit,  is  not  so  identified  with 
the  infants  as  to  make  testimony  given  in  a  previous  action  between 
herself,  individually  and  in  her  own  right,  and  the  defendant,  admis- 

m'kelv.ev.(2d  ED.)— 19 


290  HEARSAY.  (Ch.  11 

derived  separately  from  the  same  original  owner  is  not.^^  So 
a  subsequent  grantee  is  privy  in  estate. ^- 

With  respect  to  the  witness  himself,  however,  it  is  held  that 
he  must  have  been  a  person  who  would  have  been,  if  alive,  a 
competent  witness  on  the  second  trial.  In  other  words,  any 
objection  to  his  competency  may  be  taken  that  could  be  taken 
if  he  were  alive  and  placed  upon  the  stand.^^  But  where  the 
witness'  competency  depends  upon  his  own  statements  as  to 
his  qualifications,  as  in  the  case  of  an  expert,  and  the  party  on 
the  former  trial  failed  to  object  to  the  competency  or  to  cross- 
examine,  the  fact  that  there  is  not  sufficient  qualification  shown 
in  the  testimony  of  the  witness  will  not  make  it  inadmissible 
upon  objection  interposed  when  the  testimony  is  offered  on  the 
second  trial. *** 

Identity  a  Question  for  the  Court. 

The  question  of  whether  the  issues  between  the  parties  is  the 
same  as  on  the  former  trial,  as  well  as  those  relating  to  the 
identity  of  the  parties  and  to  the  position  of  the  adverse  party 
with  respect  to  his  opportunity  to  cross-examine,  are  all  pre- 
lirrfJnary  questions,  relating  to  the  admissibility  of  the  previous 
testimony,  and  are  for  the  court  to  determine.^^ 

sible  in  the  subsequent  suit.  Walterhouse  v.  Walterhouse,  130  Mich. 
89,  89  N.  W.  585 ;  Hooper  v.  Railway  Co.,  112  Ga.  9G,  37  S.  E.  165. 

91  Jackson  v.   Crissey,   3  Wend.   (N.   Y.)   251. 

9  2  Yale  V.  Comstocli,  112  Mass.  267.  In  this  case  A.  sued  X.  for 
raising  the  height  of  a  dam  and  flowing  A.'s  land.  A.  derived  title 
from  M.,  and  X.  derived  title  from  S.  Upon  the  trial  X.  offered  the 
testimony  of  S.,  given  upon  a  former  trial,  in  respect  to  the  height 
of  the  dam.  The  former  trial  was  between  M.  and  S.,  and  the  ques- 
tion of  the  height  of  the  dam  was  a  material  issue.  S.  had  since  died. 
Held  admissible.  See,  also,  Martin  v.  Ragsdale,  71  S.  G.  67,  50  S.  E. 
671. 

»3  Eaton  V.  Alger,  47  N.  Y.  345,  350. 

94  Wallach  v.  Railway  Go.,  105  App.  Div.  422,  94  N.  Y.  Supp.  574. 

95Ghase  v.  Mills  Co.,  75  Me.  156,  160;  Perkins  v.  Stickney,  132 
Mass.  217. 


§  166)      REAL  EXCEPTIONS  TO  GENERAL  RULE.         291 

166.  DISABILITIES  W^HICH  ARE  RECOGNIZED— The  chief 
disabilities  ivhich  tlie  courts  hold  sufiQ.cient  to  justify 
the  use  of  the  testimony  are  death,  sickness,  collusive 
absence,  and  (in  civil  cases)  absence  beyond  the  juris- 
diction of  the  court. 

This  is  as  the  rule  is  generally  accepted  by  the  courts.  Pos- 
sibly it  may  be  broader  than  it  was  in  its  inception,  though  at  a 
comparatively  early  period  it  was  approved  in  substantially 
this  form,  ^'''  and  any  positive  disability  which  prevented  the 
testimony  of  the  witness  being  procured  was  deemed  sufficient 
to  justify  the  admission  of  his  previous  testimony.  The  ten- 
dency is  rather  to  broaden  the  scope  of  the  exception  than  to 
limit  it,  so  far  as  its  application  to  civil  cases  is  concerned. ^^ 

9  6  Fry  V.  Wood  (1737)  1  Atk.  44.5.  "Agreed,  in  tins  case,  where  a 
person  has  been  examined  in  chancery,  that  in  a  cause  at  law  between 
the  same  parties  his  deposition  may  be  used  in  evidence,  if  it  can  be 
proved  that  the  witness  is  dead,  or  by  reason  of  sicliness,  etc.,  is  not 
able  to  attend,  or  that  he  is  out  of  the  kingdom,  or  otherwise  not 
amenable  to   the  process  of  the  court." 

9  7  Where  death  is  the  disability  relied  upon,  proof  that  the  wit- 
ness is  generally  reputed  to  be  dead  and  that  sucli  report  of  his  death 
has  been  communicated  to  his  family  is  sufficient  to  render  his  tes- 
timony admissible.  Welch  v.  Railway  Co.,  182  Mass.  84,  64  N.  E. 
695.  Insanity  is  sufficient.  Whltaker  v.  Marsh,  62  N.  H.  477.  Ab- 
sence from  the  state.  Magill  v.  Kauffman,  4  Serg.  &  R.  (Pa.)  317,  8 
Am.  Dec.  713.  The  absence  must  be  for  an  indefinite  time.  Southern 
R.  Co.  V.  Bronner,  141  Ala.  517.  37  South.  702.  Absence  from  the 
jurisdiction  has  been  held  not  to  be  sufficient,  unless  it  be  shown  that 
due  diligence  has  been  exercised  in  trying  to  take  the  witness'  testi- 
mony by  commission,  and  that  this  is  impossible  by  reason  of  his 
whereabouts  being  imknown.  New  York,  L.  E.  &  W.  R.  Co.  v.  Har- 
ing,  47  N.  J.  Law,  137,  139,  .54  Am.  Rep.  123;  McGovern  v.  Smith, 
75  Vt.  104,  53  Atl.  326.  Absence  of  a  public  officer  upon  an  official 
duty.  Noble  v.  Martin,  7  Mart.  N.  S.  (La.)  282.  Absence  by  collu- 
sion with  adverse  party.  Williams  v.  State,  19  Ga.  402 ;  U.  S.  v.  Rey- 
nolds. 1  Utah,  319.  Temporary  sickness,  causing  an  inability  to  at- 
tend the  trial,  has  been  held  sufficient,  if,  in  the  discretion  of  the  trial 
judge,  the  ends  of  justice  would  be  better  accomplished  by  proceed- 
ing with  the  trial,  and  receiving  the  previous  testimony,  than  by 
postponing  it  until  the  recovery  of  the  witness.  Chase  v.  Mills  Co., 
75  Me.  156;  Molloy  v.  Express  Co.,  22  Pa.  Super.  Ct.  173.  So,  also, 
infirmity  by  reason  of  old  age,  which  renders  it  difficult  for  the  wit- 
ness to  attend  personally.  Thornton  v.  Brltton,  144  Pa.  126,  22 
Atl.  1048.  A  peculiar  question  has  arisen  where,  under  statutory  pro- 
vision, death  of  an  adverse  pai'ty  renders  the  surviving  party  incom- 


202  HEARSAY.  (Ch.  H 

The  mere  fact  of  loss  of  memory  by  a  witness  called  on  the 
second  trial  does  not  justify  the  introduction  of  his  testimony 
given  on  the  first.®®  In  this  case,  however,  there  would  be  no 
objection  to  the  use  of  the  previous  testimony  to  refresh  the 
witness'  memory.®® 

Whether  Disability  Sufficient  a  Question  for  the  Court. 

In  case  of  any  disability  except  death,  the  party  offering  the 
testimony  must,  as  a  preliminary  matter,  show  to  the  satisfac- 
tion of  the  court  that  he  has  used  due  diligence  to  obtain  the 
personal  attendance  of  the  witness. ^°° 

As  to  Criminal  Cases. 

In  criminal  cases  the  disability  is  confined  within  narrower 
limits.  The  constitutional  provisions  for  the  protection  of  per- 
sons charged  with  crime,  doubtless,  are  responsible  for  this. 
The  provision  is  common  which  provides  "that  in  all  criminal 
prosecutions  the  accused  has  the  right  to  meet  the  witness 
against  him  face  to  face,"  and  while  it  is  held  that,  where  evi- 

petent  as  a  witness  against  the  representative  of  the  deceased  party. 
In  a  case  of  this  sort  testimony  given  on  a  previous  trial  by  the 
survivor  in  the  lifetime  of  the  deceased  has  been  held)  admissible. 
Walbridge  v.  Knipper.  96  Pa.  48. 

98  Robinson  v.  Gilman,  43  N.  H.  295;  Reed  v  Orton,  105  Pa.  294, 
299 ;  Wells  v.  Drayton,  1  Nott  &  McC.  (S.  C.)  409.  In  this  case  one 
R.  was  examined  on  a  previous  trial  of  the  case.  He  was  summoned 
on  the  later  trial  as  a  witness,  and  said  "that  he  had  totally  dismissed 
the  subject  from  his  mind;  that  he  could  at  the  first  trial  depend  on 
his  recollections,  but  not  now;  that  be  remembered  now  little  or  no- 
thing of  what  passed  between  the  parties  concerning  their  contract, 
but  that  whatever  he  stated  at  the  former  trial  was  certainly  true." 
It  was  held  his  previous  testimony  was  not  admissible.  It  seems  that 
it  might  with  propriety  have  been  used  to  refresh  the  witness'  mem- 
ory. That  under  such  circumstances  the  previous  testimony  will  be 
allowed,  see  Rothrock  v.  Gallaher,  91  Pa.  lOS.  But  see  State  v.  Wa- 
tenvorks  Co.,  107  La.  1,  31  South.  395,  where  a  witness  was  imable  to 
recall  the  facts  to  which  he  formerly  testified  by  reason  of  the  lapse 
of  years  and  his  advancing  age.  It  was  held  that  his  testimony  given 
on  the  former  trial,  upon  bis  affirmation  that  his  testimony  was  true, 
was  admissible. 

9!)  Ruch  V.  Rock  Island.  97  U.  S.  093.  24  L.  Ed.  1101:  Stone  v.  In- 
surance Co.,  71  Mich.  81,  38  N.  W.  710. 

100  Dye  v.  Com..  3  Bush  CKy.)  3;  Schearer  v.  Harber,  36  Ind.  536, 
541;  Wilder  v.  City  of  St.  Paul.  12  Minn.  192,  20G  (Gil.  116).  But, 
see,  McGovern  v.  Smith,  75  Vt.  104,  53  Atl.  326. 


§  167)      REAL  EXCEPTIONS  TO  GENERAL  RULE.         203 

dence  has  once  been  given  in  court  by  the  witness  personally 
in  the  presence  of  the  accused,  it  is  not  a  violation  of  this  pro- 
vision to  allow  it  to  be  repeated  in  case  of  the  death  of  the 
witness,  ^°^  still  the  influence  of  the  provision  is  felt  in  the  dis- 
inclination to  extend  the  rule  to  many  other  disabilities  which 
are  recognized  in  civil  cases.' ^^  Absence  from  the  jurisdiction- 
is  held  in  some  of  the  states  to  be  sufficient,  in  criminal  as  well 
as  in  civil  cases.' "^ 


167.  MANNER  OF  PROOF  OF  DECLARATIONS— The  man- 
ner of  proof  of  previous  testimony  is  not  governed  by 
any  well-defined  rule,  accepted  by  all  the  cases.  If  tbe 
testimony  has  been  written  down  by  a  stenographer 
or  other  person,  such  written  statement  forms  the 
best  basis  of  proof,  upon  being  duly  authenticated. 
If  the  testimony  was  not  written  down,  the  evidence 
of  any  one  who  heard  it  and  remembers  is  suffi- 
cient.! 04 

101  Com.  V.  Richards,  18  Pick.  (Mass.)  434,  29  Am.  Dec.  60S;  Sum- 
mons V.  State,  5  Oliio  St.  325,  342 ;  Sage  v.  State,  127  Ind.  15,  25,  26 
N.  E.  067 ;  State  v.  Able,  65  Mo.  357,  370 ;  State  v.  Johnson,  12  Nev. 
121  In  Virginia  the  rule  does  not  seem  to  have  been  extended  to 
criminal  cases,  even  in  the  case  of  a  deceased  witness.  Finn  v. 
Com.,  5  Rand.  (Va.)  701,  708;  Brogy  v.  Com.,  10  Grat.  (Va.)  722,  732. 
The  rule  adopted  in  Virginia  seems  to  prevail  also  in  the  United  States 
courts  and  in  the  state  of  Texas.  United  States  v.  Sterland,  Fed. 
Cas.  No.  16,387 ;  Cline  v.  State,  36  Tex.  Cr.  R.  320.  36  S.  W.  1090, 
37  S.  W.  722,  61  Am.  St.  Rep.  850. 

102  Com.  V.  McKenna,  158  Mass.  207,  33  N.  B.  389;  Thornton  v. 
Britton,  144  Pa.  120,  131,  22  Atl.  1048;  State  v.  Staples,  47  N.  H. 
113,  119,  90  Am.  Dec.  505. 

103  Com.  V.  Cleary,  148  Pa.  26,  38,  23  Atl.  1110:  Ponple  v.  Devine. 
46  Cal.  45.  Contra,  Collins  v.  Com.,  12-  Bush  (Ky.~l  271;  Brogy  v. 
Com.,  10  Grat.  (Va.)  722,  732.  Absence  from  jurisdiction  by  defend- 
ant's procurement  was  held  not  sufficient  in  Bergen  v.  People,  17  111. 
426,  65  Am.  Dec.  672. 

104  By  stenographer's  notes,  Stewart  v.  Bank,  43  Mich.  257,  5  N. 
W.  302;  by  notes  of  counsel.  Mineral  Point  R.  Co.  v.  Keep,  22  111. 
9,  19,  74  Am.  Dec.  124;  Rhine  v.  Robinson,  27  Pa.  30;  Waters  v. 
Waters,  35  Md.  531,  540;  Carpenter  v.  Tucker,  98  N.  C.  310.  3  S.  E. 
831;  by  judge's  minutes  of  testimony,  Martin  v.  Cope,  3  Abb.  Dec. 
(N.  Y.)  182,  192 ;  by  minutes  of  master  in  chancery,  Yale  v.  Comstock, 
112  Mass.  267;  by  a  copy  taken  by  another  person  of  the  judge's 
minutes,   the  copy  being  authenticated,   and  it  appearing  that  the 


294  HEARSAY.  (Ch.  11 

In  speaking  of  stenographers'  or  other  minutes  as  forming 
a  basis  of  proof,  what  is  meant  is  that  they  may  be  used  in  con- 
nection with  the  stenographer's  testimony.^ °^  The  basis  of 
their  use,  strictly  speaking,  is  for  the  purpose  of  refreshing  the 
memory  of  the  witness  who  took  them.^°®  The  notes  them- 
selves cannot  be  used  as  evidence/"'^ 

The  fact  that  the  testimony  has  been  taken  by  a  stenographer 
does  not  preclude  the  admission  of  oral  evidence  as  to  what 
the  testimony  was.^*^^  It  has  been  held,  however,  in  some  cases, 
that  the  notes,  when  properly  authenticated,  are  themselves  ad- 
missible as  evidence.  In  many  of  the  decisions  it  may  be  a 
looseness  of  language  which  leads  to  this  conclusion,  though  in 
some  the  point  seems  to  have  been  expressly  adjudicated.^^® 
But  where  the  testimony  has  been  incorporated  into  a  case  on 
appeal,  which  has,  in  accordance  with  statutory  provisions, 
been  filed,  and  has  become  a  part  of  the  record,  it  is  held  that 

original  minutes  were  lost,  Whitcber  v.  Morey,  39  Vt.  459.  470.  A 
stenographer's  report  of  a  dumb  witness'  testimony,  wbere  tbe  same 
was  given  by  signs,  and  transcribed  by  tlie  stenographer  in  his  own 
language,  has  been  held  admissible.  Quinn  v.  Halbert,  57  Vt.  178. 
In  the  case  of  notes  and  minutes  of  this  sort,  it  is  held  that  their 
correctness  may  be  disputed,  and  the  question  is  for  the  jury  as  to 
the  credit  to  be  given  them.  Mineral  Point  R.  Co.  v.  Keep,  supra; 
Spalding  v.  Lowe,  56  Mich.  366,  370,  23  N.  W.  46. 

looDady  v.  Condit,  104  111.  App.  507.  But  it  is  now  generally 
provided  by  statute  that  the  stenographer's  minutes  may  themselves 
be  read  in  evidence  upon  the  subsequent  trial.  The  provision  of  the 
New  York  statutes  (Code  Civ.  Proc.  §  830)  may  be  taken  as  a  fair 
sample  of  the  usual  statutory  provision  upon  this  subject. 

106  Sloan  V.  Somers,  20  N.  .1.  Law,  06;  Waters  v.  Waters,  35  Md. 
531,  540 ;  Yancey  v.  Stone,  9  Rich.  Eq.  (S.  C.)  429 ;  Mineral  Point  R. 
Co.  V.  Keep,  22  111.  9,  19,  74  Am.  Dec.  124;  Phenix  Ins.  Co.  v.  Sullivan, 
39  Kan.  449,  18  Pac.  528;  Watrous  v.  Cunningham,  71  Cal.  30,  11 
Pac.  811.  In  the  case  of  a  judge  before  whom  the  previous  trial  was 
had,  there  is  no  objection  to  the  judge  himself  being  a  witness ;  and, 
if  he  becomes  one,  his  minutes  may  be  used  to  refresh  his  recollec- 
tion, though  he  may,  if  he  chooses,  exercise  his  privilege  and  decline 
to  testify.  Welcome  v.  Batchelder,  23  Me.  85.  See,  also,  Grimm  v. 
Hamel,  2  Hilt.  (N.  Y.)  434. 

107  Huff  V.  Bennett,  4  Sandf.  (N.  Y.)  120,  129;  Roston  v.  Morris,  25 
N.  J.  Law,  173,  175 ;  Livingston  v.  Cox,  8  Watts  &  S.  (Pa.)  61. 

108  Meyer  v.  Foster,  147  Cal.  166.  81  Pac.  402. 

109  Brown  v.  Com..  73  Pa.  321,  13  Am.  Rep.  740;  Spalding  v.  Lowe, 
56  Mich.  366,  370,  23  N.  W.  46. 


§  168)      REAL  EXCEPTIONS  TO  GENERAL  RULE.         295 

it  is  in  itself  competent  as  proof  of  what  the  testimony  was.^^'' 
The  rule  extends  also  to  facts  which  have  been  stipulated 
in  evidence ;  that  is,  where  the  parties  have  stipulated  that  a 
witness,  if  called,  would  testify  to  certain  facts,  setting  forth 
the  facts  in  the  stipulation.  Upon  a  subsequent  trial  it  has 
been  held  that  the  stipulation  may  be  read  in  evidence/^^  Tes- 
timony of  this  character  is  not  confined  to  persons  connected 
with  the  case,  but  may  be  given  by  any  person  who  heard  the 
witness  testify  and  who  is  himself  a  competent  witness.^  ^^ 


168.  PRECISE  LANGUAGE  NOT  NECESSARY— It  is  gener- 
ally Iield  that,  if  the  proving  \iritness  can  state  the  sub- 
stance of  the  entire  testimony,  he  is  cojsnpetent. 

It  is  not  necessary  that  the  precise  language  of  the  former 
testimony  should  be  repeated.  This  follows,  necessarily,  from 
the  rule  which  allows  a  person  who  heard  the  testimony  to  be 
a  witness ;  for  it  would  be  practically  impossible  for  such  per- 
son to  give  the  exact  language.     If  the  substance  of  the  testi- 

iioLathrop  v.  Adldsson,  87  Ga.  339,  13  S.  E.  517;  Slingerland  v. 
Slin?:erland.  46  Minn.  100,  4S  N.  W.  605;  RoFS-Lewin  v.  Insurance  Co., 
20  Colo.  App.  262,  78  Pac.  305.  But  see  Edwards  v.  Gimbel,  202  Pa. 
30,  51  Atl.  357,  where  it  was  held  that  testimony  incorporated  in  a 
bill  of  acceptance  could  not  be  used  as  evidence  on  a  subsequent  trial. 
A  deposition  talien  under  a  commission  and  duly  filed  would  seem  ad- 
missible on  this  same  ground.  Radclyffe  v.  Barton.  161  Mass.  328. 
37  N.  E.  373.  A  deposition  taken  to  be  used,  but  which  was  not  in 
fact  used,  was  held  not  admissible  in  George  v.  Fisk,  32  N.  H.  32,  47. 
This  seems  too  narrow  a  construction  of  the  rule.  All  of  the  ele- 
ments upon  which  the  exception  is  founded  are  present  here,  as  well 
as  in  the  case  of  evidence  orally  given,  or  of  a  deposition  actually 
read  upon  the  trial. 

Ill  Fortunato  v.  City  of  New  York.  74  App.  Div.  441,  77  N.  Y. 
Supp.  575.  But  it  has  been  held  that  the  rule  does  not  allow  it  to 
be  shown  that  on  a  former  trial  a  witness,  since  deceased,  offered 
to  testify  to  certain  facts.  Lane  v.  DeBode,  29  Tex.  Civ.  App.  602, 
69  S.  W.  437. 

ii2Costigan  v.  Lunt,  127  Mass.  354.  Where  the  testimony  was 
given  through  an  interpreter  at  the  former  trial,  it  was  held  error 
to  allow  a  witness  to  give  in  evidence  the  interpreter's  statement  of 
what  was  said;  the  witness  himself  not  having  understood  the  lan- 
guage intei-preted.  State  v.  Terline.  23  R.  I.  530,  51  Atl.  204,  91  Am. 
St.  Rep.  050.    It  has  even  been  held  that  an  official  stenographer  can- 


20G  HEARSAY.  (Ch.  11 

mony  is  stated,  it  is  sufficient.^ ^^  This  is  the  generally  accept- 
ed rule.  The  doctrine  generally  prevails  that  a  witness,  to  be 
competent  to  testify  to  evidence  given  upon  a  previous  trial, 
must  be  able  to  state  that  he  can  give  all  the  testimony,  both 

not  give  iu  evidence  Iiis  report  of  the  interpreter's  translation.  People 
V.  Jan  John,  137  Cal.  220,  G9  Pac.  10G.3.  In  this  case  the  interpreter 
himself  \^■as  also  present,  a  witness,  and  testilied  that  he  had  accu 
rately  repeated  the  witness"  statement ;  and,  the  stenographer  hav- 
ing testified  that  he  accnrately  transcribed  them,  it  would  seem  that 
the  notes  might  have  been  used,  without  too  great  violence  to  the 
hearsay  rule. 

113  Ruch  V.  Rock  Island,  97  U.  S.  693,  24  L.  Ed.  1101.  In  this  case. 
Mr.  Justice  Swayne,  delivering  the  opinion  of  the  court,  says  (page 
694,  97  U.  S.) :  "The  precise  language  of  the  deceased  witnesses  was 
not  necessary  to  be  proved.  To  hold  otherwise  would  in  most  in- 
stances exclude  this  class  of  secondary  evidence,  and  in  so  far  defeat 
the  ends  of  justice.  Where  a  stenographer  has  not  been  employed,  it  can 
rarely  happen  that  any  one  can  testify  to  more  than  the  substance 
of  what  was  testified  by  the  deceased,  especially  if  the  examination 
was  protracted,  embraced  several  topics,  and  was  followed  by  a 
searching  cross-examination.  It  has  been  well  said  that,  if  a  witness 
in  such  case  from  mere  memox'y  professes  to  be  able  to  give  the 
exact  language,  it  is  a  reason  for  doubting  his  good  faith  and  veracity. 
Usually  there  is  some  one  present  who  can  give  clearly  the  substance, 
and  that  is  all  the  law  demands.  To  require  more  would,  in  effect, 
abrogate  the  rule  that  lets  in  the  reproduction  of  the  testimony  of  a 
deceased  witness.  The  uncertainty  of  human  life  renders  the  rule 
as  we  have  here  defined  it  not  infrequently  of  great  value  in  the  ad- 
ministration of  justice.  The  right  to  cross-examine  the  witness  when 
he  testified  shuts  out  the  danger  of  any  serious  evil,  and  those  whose 
dut;\'  it  is  to  weigh  and  apply  the  evidence  will  always  have  due  re- 
gard to  the  circumstances  under  which  it  comes  before  them,  and 
rarely  overestimate  its  probative  force."  To  the  same  effect,  see 
Lime  Rock  Bank  v.  Hewett,  52  Me.  531 ;  Young  v.  Dearborn,  22  N.  H. 
372 ;  Earl  v.  Tupper,  45  Vt.  275,  283 ;  Hepler  v.  Bank,  97  Pa.  420,  39 
Am.  Rep.  813;  Wagers  v.  Dickey,  17  Ohio.  439,  49  Am.  Dec.  467; 
Davis  V.' Kline,  96  Mo.  401,  9  S.  W.  724,  2  L.  R.  A.  78;  Solomon  R. 
Co.  V.  Jones,  34  Kan.  443,  460,  8  Pac.  730;  Clealand  v.  Huey,  18 
Ala.  343 ;  Puryear  v.  State,  63  Ga.  692 ;  Ilorne  v.  Williams,  23  Ind. 
37;  Thompson  v.  Blackwell,  17  P..  Mon.  (Ky.)  609,  624;  People  v. 
Murphy,  45  Cal.  137,  143.  It  is  held  sufficient,  in  crimhial  cases  as 
well  as  in  civil,  if  the  substance  of  the  previous  testimony  be  given. 
U.  S.  V.  Macomb,  5  :McLeau  (U.  S.)  286,  Fed.  Cas.  No.  15,702 ;  Summons 
v.  State,  5  Ohio  St.  325.  346;  State  v.  Able,  65  Mo.  357,  371;  State  v. 
O'Brien,  81  Iowa,  88,  90,  46  N.  W.  752.  In  several  of  the  states  the 
stricter  rule  prevails,  and  the  precise  words  are  required.  Yale  v. 
Comstock,  112  Mass.  267.     In  Warren  v.  Nichols,  6  Mete.  (Mass.)  261 


§  168)  REAL    EXCEPTIONS   TO    GENERAL    RULE.  297 

direct  and  cross-examination.  The  courts,  as  will  be  seen  by 
the  cases  cited,  vary  in  the  strictness  with  which  they  hold  to 
this  doctrine.  Some  hold  that  remembrance  of  substantially 
all  the  facts  as  testified  to  sufficiently  qualifies  the  witness,  "■* 
while  others  insist  upon  a  stricter  interpretation.^ ^^  When  the 
word  "substance"  is  used,  it  means  substance  of  the  whole  tes- 
timony. One  who  heard  only  a  part,  or  who  remembers  only  a 
part,  will  not  be  permitted  to  testify,  even  though  his  memory 
be  full  and  accurate  with  respect  to  that  part.^^® 

As  will  have  been  seen  from  an  examination  of  the  cases  cit- 
ed in  the  preceding  notes,  the  cases  differ  very  much  in  the 
manner  in  which  they  treat  this  subject.  Some  are  very  strict, 
and  others  allow  much  latitude  in  the  introduction  of  this  kind 
of  testimony.  As  a  practical  matter,  much  depends  upon  the 
nature  of  each  particular  case  and  the  subject-matter  involved. 
It  is  easily  conceivable  that  in  certain  cases  the  exact  language 

the  rule  was  fully  discussed,  and  the  strict  interpretation  of  it,  men- 
tioned above  and  adopted  in  the  case  of  Com.  v.  Richards,  18  Pick. 
(Mass.)  434,  29  Am.  Dec.  608,  was  adhered  to,  though  the  judges 
were  not  in  accord  as  to  its  correctness  in  principle.  See,  also,  Eph- 
raims  v.  Murdock,  7  Blackf.  (Ind.)  10;  U.  S.  v.  Wood,  3  Wash.  C.  C. 
(TT.  S.)  440,  Fed.  Cas.  No.  16,756.  In  New  York  the  rule  is  commonly 
!-^tnled  as  requiring  the  pi*eclse  words,  but  it  seems  this  does  not  mean 
without  slight  verbal  difference.  The  language  substantially  as  given 
is  all  that  is  required.  Martin  v.  Cope,  3  Ahb.  Dec.  (N.  Y.)  182,  192 ; 
Clark  V.  Vorce,  15  Wend.  (N.  Y.)  193,  30  Am.  Dec.  53;  Mclntyre  v. 
Railroad  Co.,  37  N.  Y.  2S7,  291. 

Ill  In  Summons  v.  State,  5  Ohio  St.  325,  will  be  found  a  full  and 
exhaustive  discussion  of  the  question.  See,  also,  State  v.  O'Brien,  81 
Iowa.  88,  91,  46  N.  W.  752 ;  Thompson  v.  Blackwell,  17  B.  Mon.  (Ky.) 
609,   624. 

115  Woods  V.  Keyes.  14  Allen  (Mass.)  236,  92  Am.  Dec.  76r) ;  Emery 
V.  Fowler,  39  Me.  326.  332,  63  Am.  Dec.  627;  Black  v.  Woodrow,  39 
Md.  195.  220. 

iicTibbetts  v.  Flanders,  18  N.  TI.  284,  292;  Buie  v.  Carver.  73  N. 
C.  264 ;  Fell  v.  Railroad  Co.,  43  Iowa,  177.  But  in  Johnson  v.  Powers, 
40  Vt.  611,  an  attorney  for  one  of  the  parties,  who  had  taken  notes 
of  the  direct  examination  but  not  of  the  cross,  was  permitted  to  testi- 
fy, on  the  theory  that  the  other  party,  who  was  living  and  in  court, 
bad  the  opportunity  to  prove  the  cross-examination  if  he  deemed  it 
advantageous.  See,  also,  Philadelphia  &  R.  R.  Co.  v.  Spoaren,  47 
Pa.  300,  86  Am.  Dec.  544.  In  Black  v.  Woodrow,  supra,  one  of  the 
parties  to  the  action  was  sworn  as  a  witness  to  testify  to  what  a  de- 
ceased witness  said  on  a  former  trial.  He  stated  that  he  could  state 
substantially   what   the  deceased  witness   said   with   i-espect   to   the 


298  HEARSAY.  (Ch.  11 

would  be  necessary,  while  in  others  all  the   ends  of  justice 
would  be  served  by  admitting  the  substance. 


169.  SAME— EXTENSION  OF  RULE— In  some  jurisdictions 
the  admission  of  declarations  of  this  sort  is  extended 
to  those  made  in  preliminary  investigations,  arbitra- 
tions, and  other  like  proceedings,  'where  there  has 
been  a  right  of  cross-esamination. 

There  is  a  tendency  in  some  states  to  give  a  very  liberal  in- 
terpretation to  the  rule,  so  far  as  the  nature  of  the  previous 
proceedings  go.  Ordinarily  the  testimony  wished  to  be  proven 
has  been  given  upon  the  trial  of  an  action,  but  it  sometimes 
happens  that  it  was  given  in  a  preliminary  proceeding  or  in- 
vestigation, in  which  witnesses  have  been  examined,  or  in  an 
arbitration  between  the  parties.^ ^^  The  cases  which  go  fur- 
quality  and  condition  of  a  lot  of  lumber,  but  could  not  state  substan- 
tially wbat  he  testified  as  to  the  quality  of  pine  grown  on  certain 
lands,  concerning  which  the  deceased  witness  had  also  given  evidence. 
It  was  held  that  he  was  not  sutBciently  qualified. 

117  Preliminary  hearing  in  criminal  case  before  magistrate  or  jus- 
tice of  the  peace.  Com.  v.  Richards,  18  Pick.  (Mass.)  4:J4.  29  Am.  Dec. 
608;  State  v.  Hooker,  17  Vt.  658;  Floyd  v.  State.  82  Ala.  16,  22,  2 
South.  683;  Kendrick  v.  State,  10  Humph.  (Tenn.)  479.  But  where  the 
accused  was  not  present,  and  had  no  opportunity  to  cross-examine,  it 
was  held  that  testimony  given  on  a  coroner's  inquest  could  not  be 
used  against  him  on  his  trial.  State  v.  Campbell,  1  Rich,  Law  (S.  C.) 
124.  In  Bailey  v.  Woods,  17  N.  H.  36.5,  which  was  a  case  where  the 
previous  proceeding  had  been  an  arbitration,  the  court  says  (page 
372) :  "We  do  not  understand  that  the  admissibility  of  such  evidence 
depends  so  much  upon  the  particular  character  of  the  tribunal  as 
ui>on  other  matters.  If  the  testimony  be  given  under  oath  in  a 
judicial  proceeding,  in  which  the  adverse  litigant  was  a  party,  and 
where  he  had  the  power  to  cross-examine,  and  was  legally  called 
upon  to  do  so,  the  great  and  ordinary  tests  of  truth  being  no  longer 
wanting,  the  testimony  so  given  is  admitted  in  any  subsequent  suit 
between  the  parties.  An  arbitration  is  a  judicial  proceeding,  and  the 
principle  of  the  rule  seems  to  apply  as  well  to  cases  of  this  character 
as  to  technical  suits  at  law."  It  seems  likely  that  the  arbitration 
referred  to  was  one  which  was  had  under  authority  of  some  statute 
which  gave  the  right  to  administer  the  oath.  In  an  old  New  .lersey 
case,  where  the  arbitration  was  an  informal  one,  and  the  witnesses 
were  not  sworn,  the  testimony  was  not  allowed  in  a  subsequent  trial. 
.Jessup  V.  Cook,  6  N.  J.  Law,  434,  438.     As  to  testimony  taken  before  a 


§  170)  REAL    EXCEPTIONS   TO    GENERAL    RULE.  299 

thest  in  extending  the  rule  never  depart  from  the  strict  enforce- 
ment of  the  condition  with  respect  to  cross-examination. 

Testimony  given  at  a  proceeding  not  a  trial  may  be  inadmis- 
sible, because  the  nature  of  the  proceeding  was  such  that  it 
cannot  be  fairly  said  that  the  issues  and  parties  are  identical 
with  those  at  the  trial  where  the  testimony  is  offered.  Thus, 
testimony  given  at  a  coroner's  inquest  has  been  held  to  be  inad- 
missible in  a  subsequent  action  to  recover  damages  for  caus- 
ing the  death  of  the  deceased.^^^ 

It  has  also  been  held  that  depositions  before  trial  taken  in  a 
previous  action,  as  well  as  testimony  given  at  the  trial,  are  ad- 
missible in  a  later  action  between  the  same  parties.^^^  This  is 
consistent  with  the  idea  that  such  depositions  are  a  part  of  the 
trial  of  the  case,  and  are  to  be  treated  the  same  as  oral  testi- 
mony given  at  the  trial.^"'' 


DECLARATIONS    MADE    IN    THE    REGULAR    COURSE    OF 

BUSINESS. 

170.  The  fact  that  declarations  are  made  in  pursuance  of  the 
routine  belonging  to  the  conduct  of  a  regular  business 
is  held  to  give  them  a  sufficient  credibility  to  make', 
them  admissible  as  evidence,  under  circumstances  and 
ivithin  limitations  varying  in  the  different  jurisdic- 
tions. 

referee,  in  reference  proceedings  wliich  were  afterwards  declared  by 
the  court  irregular  and  of  no  effect,  see  McAdams'  Ex'rs  v.  Stilwell, 
13  Pa.  90,  96.  It  has  been  held  that  where,  in  a  proceeding  before  a 
referee,  before  the  completion  of  the  evidence  the  referee  dies,  and 
also  the  witness  whose  testimony  is  in  question,  such  testimony  may 
be  used  upon  a  subsequent  hearing  before  another  referee.  Taft  v. 
Little,  178  N.  Y.  127,  70  N.  E.  211.  Where  the  court  had  no  juris- 
diction on  the  former  proceeding,  and  an  objection  was  made  by  the 
party  on  this  ground,  the  fact  that  he  proceeded  with  the  cross-ex- 
amination does  not  make  the  testimony  given  on  the  trial  admissible 
in  a  subsequent  action  between  the  same  parties.  Deering  v.  Schrey- 
er,  88  App.  Div.  457.  85  N.  Y.  Supp.  275. 

118  Cook  V.  Railroad  Co.,  5  Lans.  (N.  Y.)  401;  Boehme  v.  Sovereign 
Camp  of  Woodmen  of  the  World,  36  Tex.  Civ.  App.  501,  85  S.  W.  444. 

119  Radclyffe  v.  Barton,  161  Mass.  328,  37  N.  E.  373;  Roe  v.  Jones, 
3  L.  C.  58. 

120  Ante,  p.  284. 


300  HEARSAY  (Ch.  11 

Having  treated  somewhat  fully  the  subject  of  declarations 
made  under  oath,  we  come  next  to  several  classes  of  declara- 
tions which  are.  held  admissible  as  exceptions  to  the  hearsay- 
rule,  under  the  same  theory  but  upon  widely-differing  grounds 
of  special  credibility.  First  of  these  is  that  of  declarations 
made  in  the  regular  course  of  business.  It  is  the  distinguish- 
ing feature  of  the  admission  of  all  declarations,  under  this  class 
of  exceptions  to  the  hearsay  rule,  that  they  must  have  some 
badge  of  truthfulness  besides  the  mere  fact  of  having  been 
made.  In  the  case  of  declarations  under  oath,  it  was  the  oath 
which  gave  the  necessary  guaranty  of  reliability. 

In  the  case  of  declarations  made  in  the  regular  course  of 
business,  this  guaranty  of  special  reliability  is  found  in  the  cor- 
rectness which  usually  appertains  to  the  performance  of  rou- 
tine work.  A  regular  practice  with  respect  to  the  conduct  of  a 
business,  which  involves  the  making  of  entries  as  to  transac- 
tions carried  on,  contemporaneously  with  such  transactions, 
and  without  contemplation  of  the  use  of  such  entries  in  any 
controversy,  usually  assures  a  high  degree  of  correctness.  This 
has  been  recognized  by  the  courts,  and  upon  it  they  have  found- 
ed an  exception  to  the  hearsay  rule;^-^  or,  it  might  be  said, 
with  more  exactness,  two  exceptions  to  that  rule.  The  first  is 
that  which  embraces  shop-book  entries  made  in  the  books  of 
parties  to  the  action  by  the  parties  themselves  or  their  clerks ; 
the  second,  that  which  covers  entries  made  by  strangers  to  the 
action. 

121  Livingston  v.  Arnoux.  56  N.  Y.  507,  518.  lu  this  case,  a  re- 
ceipt given  by  a  sheriff,  since  deceased,  was  offered  as  evidence  of 
payment.  The  court  refers  to  it  as  follows  (page  518) :  "Although 
giving  a  receipt  on  payment  being  made  was  not  strictly  an  official 
act,  it  was  a  proper  and  reasonable  one,  in  the  ordinary  course  of 
business,  and  within  the  general  scope  of  his  authority  and  duty. 
*  *  *  Entries  and  memoranda,  made  by  persons,  since  deceased, 
in  tiie  ordinary  course  of  professional  and  official  employment,  are 
competent  secondary  evidence  of  the  facts  contained  in  them,  when 
they  had  no  interest  to  misrepresent  or  misstate  them.  They  are  ad- 
mitted from  necessity." 


§  171)  REAL    EXCEPTIONS   TO    GENERAL   RULE.  301 


SAME— SHOP-BOOK    RULE. 

171.  From  very  early  times  entries  made  in  shop  books  re- 
lating strictly  to  items  for  goods  sold  and  delivered 
or  work  and  labor  performed  kave  been  held  admis- 
sible. 

Formerly  a  party  to  an  action  was  not  permitted  to  testify 
in  his  own  behalf.  An  apparent  exception  to  this  rule,  how- 
ever, existed  in  the  application  of  the  so-called  "shop-book 
rule."  In  early  times  in  England  parties  were  permitted  to 
show,  by  entries  made  in  their  books,  the  sale  of  goods  or  per- 
formance of  labor ;  and  this  was  so  well  recognized  a  doctrine 
that  a  statute  was  passed  relating  to  it.^^-  Later  developments 
narrowed  the  rule  to  the  cases  w4iere  the  entries  were  made  by 
a  clerk.i-3  This,  doubtless,  seemed  to  the  courts  more  consist- 
ent with  the  doctrine  that  a  party  could  not  be  a  witness  for 
himself.  The  clerk  himself  w-as  a  competent  witness,  and  en- 
tries made  by  him  were  considered  equally  unobjectionable. 
Authentication  of  the  entries  was  required  by  the  clerk  who 
made  them,  if  living  and  within  reach ;  if  he  was  not,  proof  of 
his  handwriting  was  considered  sufficient.^-*  The  rule  with 
respect  to  entries  by  a  party  in  his  own  books  did  not  meet 
with  much  favor  from  the  English  judges  in  later  times,  and 
survived  only  in  the  minor  courts.^ ^^  Its  development  origi- 
nally, its  modern  application  in  England,  and  its  explanation 
and  justification  on  the  part  of  the  courts  in  this  country,  il- 
lustrate the  fact  that  it  is  a  rule  which  has  drawn  its  vitality 

122  St.  7  Jao.  I.  c.  12  (1609).  This  act  will  be  found  quoted  in 
Thayer.  Cas.  Ev.  (2d  Ed.)  507.  together  with  a  very  interesting  note  on 
the  English  law  x-elatlng  to  this  subject,  in  which  he  shows  the  rule 
v.as  questioned  as  early  as  16G1.  See,  also,  Omychund  v.  Barker.  1 
Atk.  21,  49. 

12  3  Cooper  V.  Marsden,  1  Esp.  1. 

124  Pitman  v.  Maddox,  1  Ld.  Raym.  732;  Price  v.  Earl  of  Torring- 
ton,  2  Ld.  Raym.  873. 

125  See  quotation  from  a  judge  of  an  English  county  court  in  Thay- 
er, Cas.  Ev.  (2d  Ed.)  pp.  507,  509.  See.  also.  Glynn  v.  Bank,  2  Ves.  Sr. 
.38;   Brain  v.  Preece,  11  Mees.  &  W.  773. 


302  HEARSAY.  (CTh.  11 

from  the  necessities  imposed  on  the  courts  by  the  contempora- 
neous methods  of  business. ^^*^ 


172.  AMERICAN  DOCTRINE— In  this  country  entries  made  by 
a  party  or  his  clerk  in  account  books,  ^vbick  appear  to 
be  fairly  and  regularly  kept  as  a  contemporaneous  rec- 
ord of  daily  business,  are  admissible,  provided  the  books 
are   properly   authenticated. 

It  will  be  observed  that  the  rule  as  stated  applies  only  to  en- 
tries in  the  books  of  a  party  to  the  suit.  This  is  the  feature 
which  distinguishes  the  shop-book  rule  from  the  rule  as  to  en- 
tries made  in  the  regular  course  of  business,  which  will  be  re- 
ferred to  shortly.     The  two  are  distinct  rules,  though  it  is  like- 

126  In  Omychmid  v.  Barker,  1  Atk.  21,  Lord  Chancellor  Hardwicke 
says  (page  49) :  "A  tradesman's  books  are  admitted  as  evidence 
through  no  absolute  necessity,  but  by  reason  of  a  presumption  of 
necessity  only,  inferi'ed  from  the  nature  of  commerce."  See,  also, 
Woodnoth  v.  Lord  Cobham,  Bunb.  180 ;  Ford  v.  Hopkins,  1  Salk.  283 ; 
Faxon  v.  Hollis,  13  Mass.  427 ;  Smith  v.  Rentz,  131  N.  Y.  169,  30  N. 
E.  54,  15  L.  R.  A.  1.38;  Pratt  v.  White,  1.32  Mass.  447;  Eastman  v. 
Moulton,  3  N.  H.  1.^)0;  Poultney  v.  Ross.  1  Dall.  (Pa.)  2.38,  1  L.  Ed. 
117.  In  Poultney  v.  Koss,  supra,  we  find  in  the  opinion  the  following: 
"As  the  law  that  has  prevailed  upon  this  subject  is  adapted  to  the 
peculiar  situation  of  the  coimtry,  it  will  naturally  differ  from  the 
law  which  is  established  in  other  places  under  different  circumstan- 
ces. Thus,  though,  in  England,  the  shop  book  of  a  tradesman  is  not 
evidence  of  a  debt  without  the  assistant  oath  of  the  clerk  w^ho  made 
the  entry,  yet  here,  from  the  necessity  of  the  case,  as  business  is 
often  carried  on  by  the  principal,  and  many  of  our  tradesmen  do  not 
keep  clerks,  the  book  proved  by  the  oath  of  the  plaintiff  himself  has 
always  been  admitted."  The  rule  having  become  thoroughly  estab- 
lished prior  to  the  statutory  removal  of  the  disability  from  parties 
to  the  suit  to  act  as  witnesses,  it  was  not  an  easy  matter  to  abolish 
it;  in  fact,  the  courts  decided  to  retain  the  rule  rather  than  attempt 
its  abolition.  See  Swain  v.  Cheney,  41  N.  H.  232;  Stroud  v.  Tilton,  4 
Abb.  Dec.  (N.  Y.)  324;  Alabama  Const.  Co.  v.  Wagnon  Bros..  137  Ala. 
388.  34  South.  352.  In  Brown  v.  Bronson,  93  App.  Div.  312,  87  N. 
Y.  Supp.  872,  it  was  held  that  entries  made  by  a  party  himself  in  his 
cash  book  would  not  be  admitted  as  against  the  party  against  whom 
the  entries  were  made;  but,  where  the  .cash  book  entries  were  made 
by  a  bookkeeper,  the  cash  book  was  admitted,  although  authenticated 
by  the  testimony  of  the  party  himself  as  to  the  method  of  bookkeep- 
ing.   Clark  V.  Bank,  164  N.  Y.  498,  58  N.  E.  659. 


§  173)      REAL  EXCEPTIONS  TO  GENERAL,  RULE.         303 

ly  that  the  latter  found  its  origin  in  suggestion  derived  from 
the  former.^"  The  shop-book  rule  is  concerned  with  written 
entries  only ;  the  other,  in  England  at  least,  covers  both  written 
and  oral.  The  shop-book  rule  covers  entries  made  in  shop  or 
account  books  only ;  the  other  is  much  broader,  and  includes  en- 
tries made  in  all  books  and  documents.  In  the  case  of  the  one 
rule,  the  entries  are  admissible,  whether  the  party  be  living  or 
dead;  in  the  other,  they  are  admissible  only  in  the  event  of 
death  or  other  equivalent  disability.  Subject  to  these  limita- 
tions, which  will  be  explained  more  fully  in  the  following  pages, 
entries  in  shop  books  are  generally  held  admissible.^^* 


173.  ENTRIES  MUST  BE  ORIGINAL— To  be  admissible,  the 
entries  must  be  original  entries,  reasonably  contempo- 
raneous  with  the   events   which   they  chronicle. 

It  is  in  the  fact  that  the  entries  are  made  at  the  time,  as  part 
of  a  regular  business  record,  that  the  guaranty  of  their  relia- 
bility is  found.    It  is  essential,  therefore,  that  they  be  the  origi- 

127  Thayer,  Cas.  Ev.  (2d  Ed.)  p.  500,  note.  And  see  Sutton  v.  Greg- 
ory, Peake,  Additional  Cas.  105;  Pritt  v.  Fairclougli,  3  Camp.  305; 
Poole  V.  Dicas,  1  Biug.  N.  C.  649,  all  of  which  are  printed  in  Thayer's 
Cases  on  Evidence. 

128  Pratt  V.  White,  132  Mass.  477;  Vosbnrgh  v.  Thayer,  12  Johns. 
(N.  Y.)  461 ;  Lassone  v.  Railroad  Co.,  66  N.  H.  345,  24  Atl.  902,  17  L. 
R.  A.  525;  Thomson  v.  Porter,  4  Strob.  Eq.  (S.  C.)  58.  .53  Am.  Dec. 
653;  3  Dane,  Abr.  318;  Ford  v.  Cunningham,  87  Cal.  209,  25  Pac.  403; 
Bradley  v.  Goodyear,  1  Day  (Conn.)  104 ;  Booster  v.  Sinkler,  1  Bay  (S. 
C.)  40.  Professor  Thayer  says  (in  a  note  on  page  517  of  his  Cases  on 
Evidence,  2d  Ed.),  of  the  doctrine  as  it  developed  in  the  United  States : 
"But  in  Massachusetts,  as  in  the  other  colonies,  the  influence  of  the 
English  superior  courts  was  powerfully  felt,  and  in  a  great  degree  It 
was  authoritative.  The  use  of  account  books  here,  supi>orted  by  the 
oath  of  the  party,  was  too  firmly  fixed  to  be  set  aside  by  the  courts ; 
but  it  was  discredited  by  the  utterances  of  English  judges,  and  as  time 
went  on,  and  the  earlier  law  passed  out  of  sight,  it  came  to  have  the 
aspect  of  a  loose,  provincial  variation,  that  'broke  in,*  as  Lord  Hard- 
wicke  said,  'on  the  original  strict  rules  of  evidence' — that  figment 
of  the  judicial  imagination.  Accordingly  it  was  surrounded  with  all 
sorts  of  limitations  and  qualifications,  vai-ying  in  different  colonies, 
and  impossible  anywhere  to  reduce  to  iiile.  At  present  the  older 
states,  it  would  seem,  might  well  follow  some  of  the  newer  ones  in 
allowing  the  unhampered  use  of  such  books.     They  would  thus  rid 


304  HEARSAY.  (Ch.  11 

nal  entries,  and  not  subsequently  posted  ones/-^  The  fact,  how- 
ever, that  temporary  memoranda  were  originally  made,  and 
the  entries  then  made  from  them  in  the  books,  does  not  make 
them  inadmissible.  They  will  still  be  considered  original  en- 
tries ;  ^^°  but  if  the  temporary  memoranda  were  made  by  anoth- 
er party,  and  then  copied  from  the  memoranda  into  the  ac- 
count book,  they  will  not  be  admitted.^ ^^  It  is  also  essential 
that  the  entires  be  contemporaneous.  This  feature  is  one  which 
is  for  the  determination  of  the  court.  Whether  an  entry  fulfills 
this  condition  will  depend  upon  the  circumstances  in  each  par- 
ticular case.  The  course  of  business  may  require  an  entry  to 
be  made  within  an  hour,  or  not  until  the  next  day.  In  each 
case,  it  is  conceived,  the  entry  would  be  held  sufficiently  con- 
temporaneous.^^-   If,  however,  the  entry  which  should  in  regu- 

themselves  of  certain  irregular  fragments  of  the  law  which  came 
about  in  a  great  degree  from  a  misapprehension  of  the  older  law, 
and  have  lost  their  main  reason  for  existence,  since  parties  have  been 
allowed  to  testify." 

129  Griesheimer  v.  Tauenbaum,  124  N.  Y.  650,  26  N.  E.  957;  Rumsey 
V.  Telephone  Co.,  49  N.  J.  Law,  322,  8  Atl.  290 ;  Lassoue  v.  Railroad 
Co.,  G6  N.  H.  345,  358,  24  Atl.  902,  17  L.  R.  A.  525;  Woodbury  v. 
Woodbury's  Estate,  50  Vt.  152 ;  Fitzgerald  v,  McCarty,  55  Iowa,  702. 
8  N.  W.  646;  Montgomery  County  v.  Bean,  82  S.  W.  240,  26  Ky.  Lavr 
Rep.  568. 

130  Faxon  v.  Ilollis,  13  Mass.  427 ;  McGoldrick  v.  Traphagen.  88 
N.  Y.  334 ;  Hoover  v.  Gehr,  62  Pa.  136 ;  Hall  v.  Glidden,  39  Me.  445 ; 
Landis  v.  Turner,  14  Cal.  573.  Faxon  v.  Hollis,  supra,  was  a  case 
where  the  plaintiff,  to  prove  his  account,  introduced  an  account  book 
kept  in  ledger  form.  It  appeared  that  he  made  memoranda  of  his 
transaction  on  a  slate,  and  afterwards  entered  them  more  fully  and 
regularly  in  his  book,  and  erased  the  slate  memoranda.  Under  these 
circumstances  the  court  held  that  the  entries  would  be  deemed  origi- 
nal entries. 

131  Schnellbacher  v.  Plumbing  Co.,  108  111.  App.  486.  In  this  case 
the  entries  were  copied  from  time  books  kept  by  laborers  who  hand- 
ed them  in  to  the  bookkeeper. 

132  Bay  V.  Cook,  22  N.  J.  Law,  343,  353;  Redlich  v.  Bauerlee,  98 
111.  134,  38  Am.  Rep.  87 ;  Landis  v.  Turner,  14  Cal.  573 ;  Chicago,  St. 
L.  &  N.  O.  R.  Co.  V.  Provine,  61  Miss.  288,  292.  In  Yearsley's  Appeal, 
48  Pa.  531,  entries  made  once  a  week  of  the  weekly  services  are 
held  sufficiently  contemporaneous.  In  Hall  v.  Glidden,  39  Me.  445, 
the  entries  were  made  from  memoranda  on  a  slate  two  to  four  weeks 
after  written  on  the  slate,  and  they  were  held  admissible.  It  ap- 
peared that  the  plaintiff's  regular  practice  was  to  wait  until  the  slate 


§  174)      REAL  EXCEPTIONS  TO  GENERAL  RULE.         305 

lar  course  be  made  within  the  hour  were  delayed  until  the  next 
day,  it  would  not  be  admitted.^ "^  The  element  of  contempo- 
raneousness will  be  further  considered  in  a  subsequent  section 
under  an  analogous  subject.^^* 


174.  RULE  CONFINED  STRICTLY  TO  SHOP  BOOKS— The 

admission  of  entries  of  this  sort  is  confined  strictly 
to  shop  or  account  books,  and  does  not  extend  to  oth- 
er books    of   record. 

Doubtless  the  limitation  of  the  rule  was  due  to  the  feeling 
that  it  must  not  get  away  from  the  element  of  "regular  rou- 
tine," or  "daily  course  of  business,"  upon  which  the  credibility 
of  the  entries  rests  to  so  large  an  extent.  Thus,  memorandum 
books,  check-stub  books,  invoice  books,  and  cash  books  have 
all  been  held  not  to  come  within  the  rule.^^^    If,  however,  it  is 

was  full,  and  then  make  the  entries,  and  that,  as  he  had  very  few 
transactions  to  record,  it  took  some  time.  But  see,  contra,  Forsj^the 
V.  Norcross,  5  Watts  (Pa.)  432,  30  Am.  Dec.  334.  In  Barker  v.  Haskell, 
9  Cush.  (Mass.)  218,  Bigelow,  J.,  says  (page  220) :  "Although  the  rule 
is  well  settled  that  the  entries,  to  be  competent,  must  have  been  made 
at  or  near  the  time  the  charges  were  incurred,  it  does  not  fix  any 
precise  time  within  which  they  must  be  made.  There  is  no  inflexible 
rule  requiring  them  to  be  made  on  the  same  day.  In  this  particular 
every  case  must  be  made  to  depend  very  much  upon  its  own  peculiar 
circumstances,  having  regard  to  the  situation  of  the  parties,  the  kind 
of  business,  the  mode  of  conducting  it,  and  the  time  and  manner  of 
making  the  entries.  Upon  questions  of  this  sort  much  must  be  left  to 
the  judgment  and  discretion  of  the  judge  who  presides  at  the  trial, 
because,  having  the  books  before  him,  and  understanding  all  the  cir- 
cumstances of  the  case,  he  is  better  able  to  decide  upon  all  questions 
involving  the  fairness  and  regularity  of  the  entries  sought  to  be 
proved." 

133  In  Henshaw  v.  Davis,  5  Cush.  (Mass.)  145,  it  was  held  that  a 
single  entry  for  three  months'  labor  showed  on  its  face  that  it  was 
not  contemporaneous,  and  that  it  was  inadmissible. 

134  Post,  §  183,  p.  312. 

135  The  following  authorities  illustrate  some  of  the  different  books 
which  have  been  excluded :  Memorandum  book.  Richardson  v.  Em- 
ery, 23  N.  H.  220.  Check  book.  Wilson  v.  Goodin,  Wright  (Ohio) 
219.  Loan  register  of  broker.  Security  Co.  v.  Graybeal,  85  Iowa, 
544,  52  N.  W.  497,  39  Am.  St.  Rep.  311.  Memoranda  or  cash  books, 
or  books  of  occasional  entry.  Kotwitz  v.  Wright,  37  Tex.  82.  Book 
of  account  with  one  person  only.    In  re  Fulton's  Estate,  178  Pa.  78, 

m'kelv.ev,(2d  ED.)— 20 


306  HEARSAY.  (Ch.ll 

a  regular  account  book,  the  form  or  the  name  is  immaterial.^ ^* 

The  fact  that  a  book  of  original  entry  contains  some  entries 

which  are  not  original  does  not  render  inadmissible  the  whole 
book.^" 


175.  DEATH  NOT  ESSENTIAL  TO  ADMISSIBILITY— Entries 
of  this  sort  are  admissible,  T(rliether  tlie  person  mak- 
ing  them  be   living   or  dead. 

The  shop-book  rule  had  no  connection  with  the  rules  which 
relate  to  declarations  of  deceased  persons.  In  fact,  the  books 
required  a  certain  authentication,  to  render  entries  admissible, 
which  could  be  better  supplied  in  case  the  bookkeeper  was  liv- 
ing and  present  as  a  witness.  If,  however,  he  was  deceased,  or 
under  any  other  disability,  so  that  his  testimony  could  not  be 
had,  the  admissibility  of  the  entries  was  not  affected,  except  so 
far  as  a  difficulty  of  proper  authentication  resulted. 


176.  AUTHENTICATION  OF  ENTRIES— The  entries  must  be 
properly  authenticated  by  the  testimony  of  the  book- 
keeper, or,  in  case  of  his  death  or  other  disability,  by 
proof  of  his  handxirriting. 

The  bookkeeper  may  be  the  party  himself,  or  a  clerk.  In 
either  case,  the  entries  are  admissible  if  they  comply  with  the 
conditions  in  other  respects  and  are  properly  authenticated  in 
accordance  with  the  rule  above  stated.^ ^®    When  the  shop-book 

87,  35  Atl.  880,  35  L.  R.  A.  133.  Slips  purporting  to  contain  memo- 
randa of  telephone  communications  embodying  orders  for  sale  of  cot- 
ton. Jacobs  V.  Cohn  (Sup.)  91  N.  Y.  Supp.  339.  Stub  entries  in  checlv 
books.     Simons  v.  Steele,  177  N.  Y.  542,  69  N.  E.  1131. 

136  Wells  V.  Hatch,  43  N.  H.  246;  Bounell  v.  Mawka,  37  N.  J. 
Law,  198;  Toomer  v.  Gadsden,  4  Strob.  (S.  C.)  193;  Tost  v.  Kener- 
son,  72  Vt.  341,  47  Atl.  1072,  52  L.  R.  A.  552,  82  Am.  St.  Rep.  948. 

i37Chisholm  v.  Machine  Co.,  160  111.  101,  113,  43  N.  E.  796;  Han- 
dy &  Co.  V.  Smith,  77  Conn.  165,  .58  Atl.  094. 

138  Stroud  V.  Tilton,  4  Abb.  Dec.  (N.  Y.)  324;  McGoldrick  v.  Trap- 
hagen,  88  N.  Y.  334 ;  Holbrook  v.  Gay,  6  Cush.  (Mass.)  215 ;  IMiller 
V.  Shay,  145  Mass.  162,  13  N.  E.  468,  1  Am.  St.  Rep.  449 ;  New  Ha- 
ven &  Northampton  Co.  v.  Goodwin,  42  Conn.  230 ;  Curren  v.  Craw- 
ford. 4  Serg.  &  R.  (Pa.)  3;  Elms  v.  Chevis,  2  McCord  (S.  C.)  349; 
Robinson  v.  Dibble's  Adm'r,  17  Fla.  4.57. 


§§  177-178)   REAL  EXCEPTIONS  TO  GENERAL  RULE.      307 

rule  originated,  parties  to  the  action  were  not  permitted  to  tes- 
tify. This,  however,  seems  to  have  had  no  influence  in  leading 
to  the  establishment  of  the  rule ;  for  the  subsequent  qualifica- 
tion of  parties  as  witnesses  had  no  effect  in  changing  it.^' 


L39 


177.  EXTENSION  OF  RULE— The  rule  has  in  some  jurisdic- 
tions been  extended  to  cover  books  of  account  kept  by 
attorneys,   physicians,   and   other  professional  nien'.i4<> 

There  has  been  in  some  jurisdictions  a  disposition  to  apply 
the  rule  wherever  it  can  be  applied  safely  and  properly,  to  the 
end  that  substantial  and  prompt  justice  may  be  done;  and  in 
this  view  there  seems  to  be  no  reason  why  it  should  be  confined 
to  the  trades  exclusively.  If  persons  in  professional  life  have  a 
regular  and  daily  routine  in  the  conduct  of  their  business, 
which  involves  the  making  of  entries  of  transactions  in  books 
of  account,  they  have  the  same  force  and  element  of  reliability 
which  entries  made  by  persons  in  commercial  lines  have. 


178.    RULE  RESTRICTED  AS  TO  AMOUNT  INVOLVED— The 

shop-book  rule  is  confined  in  its  application  to  cases 
virhere   the    entries    involve    small   amounts. 

The  cases  hold  quite  generally  that  entries  in  a  party's  own 
books  will  not  be  received  to  prove  large  and  important  transac- 
tions. In  the  case  of  entries  showing  cash  items,  the  limit  in 
amount  is  usually  about  $10.  This  comes  from  the  limitation 
adopted  by  the  English  judges  of  40  shillings.  The  reason  for 
any  limitation  at  all  appears  to  lie  in  the  fear  that,  in  case  of 
large  amounts,  entries  might  be  altered,  or,  in  the  first  instance, 
made,  for  the  purpose  of  use  in  sustaining  erroneous  charges. 
Very  probably  the  temptation  to  make  self-serving  entries 
would  be  greater,  and  the  entries  entitled  to  less  general  credi- 

13  9  Stroud  V.  Tllton,  4  Abb.  Dec.  (N.  Y.)  324;  Swain  v.  Cheney, 
41  N.  H.  232.  But  see  Nichols  v.  Haynes,  78  Pa.  174,  which  seems 
to  hold  that,  since  the  statute  making  parties  competent  as  witness- 
es, these  books  can  only  be  used  to  refresh  memory. 

140  Attorney's  books.  Codman  v.  Caldwell,  31  Me.  560.  Physi- 
cian's books.  Bay  v.  Cook,  22  N.  J.  Law,  343.  Books  of  hospital 
proprietors.     Ganahl  v.  Shore,  24  Ga.  17,  23. 


308  HEARSAY.  (Ch.  11 

bility,  in  case  of  important  matters  involving  large  amounts. 
The  limitation,  so  far  as  cash  items  are  concerned,  seems  to  be 
clearly  established.^'*^  As  to  items  for  goods  sold,  labor  per- 
formed, and  the  like,  the  limitation  does  not  seem  to  be  so  defi- 
nite, though  the  practice  is  to  exclude  the  entries  in  case  the 
values  are  considerable.^'*^ 


179.  SCOPE  OF  PROOF— Shop-book  entries  are  admissible 
only  to  prove  items  of  goods  sold  or  labor  and  serv- 
ices performed.  They  are  not  admissible  to  showr  to 
^vhom  credit  vi^as  given,  or  other  matters  collateral  to 
the  items   above   mentioned. 

The  cases  usually  arising  where  shop-book  entries  are  of- 
fered are  those  in  which  there  is  a  dispute  as  to  the  items  or 
amount  of  goods  sold  or  services  rendered.  Where  the  con- 
troversy extends  beyond  this,  and  it  is  disputed  that  the  plain- 
tifif  ever  had  dealings  with  the  defendant,  such  entries  cannot 
be  used  as  evidence  to  charge  the  defendant. ^*^  For  example, 
if  goods  were  delivered  to  A.,  but  the  plaintiff  claims  that  he 
gave  credit  to  B.,  who  ordered  them,  he  cannot  put  his  entries 
in  to  show  that  the  items  were  charged  to  B;,  instead  of  A.^'** 
Nor  can  loans,  payments  made  on  behalf  of  another,  or  other 
cash  transactions  of  any  size,  be  proved  in  this  way.^*^    A  per- 

141  Davis  V.  Sanfoi-fl,  9  Alleu  (INIass.)  216;  Keltou  v.  Hill,  58  Me. 
114;  Silver  v.  Worcester,  72  Me.  322;  Rich  v.  Eldredge,  42  N.  H. 
153,   158. 

14  2  Bustin  V.  Rogers,  11  Cnsh.  (Mass.)  346,  where  an  entry  show- 
ing a  charge  of  $300,  for  "seven  gold  American  watches,"  was  ex- 
cluded. It  is  sometimes  by  statute  limited  to  small  amounts,  as  in 
North  Carolina.     See  Alexander  v.   Smoot,  35  N.  C.  461. 

143  Ball  V.  Gates,  12  Mete.  (Mass.)  491;  Keith  v.  Kibbe,  10  Cusb. 
(Jilass.)  35 ;  Dexter  v.  Booth,  2  Allen  (Mass.)  559 ;  Field  v.  Thomp- 
son, 119  Mass.  151. 

144  Kaiser  v.  Alexander,  144  Mass.  71,  78,  12  N.  E.  209;  Cooley 
V.  Collins,  186  Mass.  507,  71  N.  E.  979. 

145  Davis  V.  Sanford,  9  Allen  (Mass.)  216;  Smith  v.  Rentz.  131  N. 
Y.  169,  30  N.  E.  54,  15  L.  R.  A.  138 ;  Case  v.  Potter,  8  .Tolms.  (N.  Y.) 
211;  Eastman  v.  Moulton,  3  N.  H.  156;  Wilson  v.  Wilson.  6  N.  J. 
Law,  95 ;  Bradley  v.  Goodyear.  1  Day  (Conn.)  104 ;  Rothschild  v. 
Sessell,  103  111.  App.  274 ;  Bouldin  v.  Rice  Mills  Co.  (Tex.  Civ.  App.) 
86  S.   W.  795.     In  Griesheimer  v.  Tanenbaum,  124  N.  Y.  650,  26  N. 


§  180)     REAL  EXCEPTIONS  TO  GENERAL  RULE.         309 

son  for  whom  labor  was  performed  will  not  be  permitted  to  in- 
troduce his  books  in  a  suit  against  him  to  show  the  time  of 
service  or  the  rate  of  wages ;  ^*^  nor  are  such  entries  admissible 
to  prove  other  matters  collateral  to  the  question  of  the  serv- 
ices performed.^'*' 


SAME— ENTRIES    MADE    BY    STRANGERS. 

180.  Entries  made  in  the  regular  course  of  business  in  tHe 
books  of  strangers  to  the  suit  are  admissible,  wheth- 
er made  by  a  principal  or  by  a  subordinate,  •where  the 
person  who  made  them  is  either  dead  or  unable  to  tes- 
tify by   reason   of   some    equivalent    disability. 

The  development  of  this  branch  of  the  exception  as  to  entries 
in  the  regular  course  of  business  has  been  somewhat  different 
in  America  from  what  it  has  been  in  England.  It  was  origi- 
nally an  easv  step  from  the  ancient  shop-book  rule,  which  was 
a  violation  both  of  the  rule  against  hearsay  and  that  which  pre- 
vented parties  to  the  suit  from  testifying,  to  the  admission  of 
entries  made  by  strangers  to  the  suit  and  their  clerks ;  and,  hav- 
ing taken  this  step,  and  found  themselves  rid  of  the  objection 
that  they  were  permitting  parties  to  the  suit  to  testify,  the 
courts  the  more  readily  extended  the  doctrine  to  matters  not 
within  the  original  shop-book  rule,  and  created  a  new  and  im- 
portant exception  to  the  rule  against  hearsay.^*®  In  an  early 
Massachusetts  case  Parker,  C.  J.,  discusses  the  propriety  of 
this  sort  of  evidence  and  comes  to  the  following  conclusion: 
"What  a  man  has  said  when  not  under  oath  may  not,  in  gen- 
eral, be  given  in  evidence  when  he  is  dead.  *  *  *  But  what 
a  man  has  actually  done  and  committed  to  writing,  when  under 
obligation  to  do  the  act,  it  being  in  the  course  of  the  business 
he  has  undertaken,  and  he  being  dead,  there  seems  to  be  no 
danger  in  submitting  to  the  consideration  of  the  jury."  ^** 

E.  957.  it  was  held  that  entries  of  this  sort  could  not  be  used  to 
prove  the  terms  of  a  special  contract.  But  see,  contra,  Swain  v.  Che- 
ney, 41  N.  H.  232. 

146  Silver  v.  Worcester,  72  Me.  322,  330. 

14  7  Mattingly  v.  Shortell.  8.5  S.  W.  215,  27  Ky.  Law  Rep.  426. 

14  8  Doe  V.  Turford,  3  Barn.  &  Adol.  890. 

149  Welsh  V.  Barrett,  15  Mass.  380,  386. 


310  HEARSAY.  (Ch.  11 

It  is  to  be  noted  that  there  is  sometimes  a  limit  as  to  what 
such  entries  will  be  received  for.  In  one  case,  where  the  qvies- 
tion  was  whether  A.,  the  plaintiff,  had  committed  an  act  of  in- 
solvency, which  turned  mainly  upon  the  point  of  where  an 
arrest  of  A.  on  a  certain  date  had  taken  place,  the  defendant,  to 
prove  the  place  of  arrest,  called  one  B.,  an  assistant  of  a  deputy 
sheriff,  W.,  who  had  since  died.  B.  testified  that  he  went  to 
A.'s  house  on  the  said  date  with  W.,  and  arrested  A.  there. 
To  meet  this  evidence  the  plaintiff  called  the  undersheriff,  who 
produced  a  certificate,  signed  by  W.,  in  which  it  was  stated 
that  W.  had  arrested  A.  in  S.  M.  street,  and  said  that  deputy 
sheriffs  were  required  to  turn  in  such  certificates  immediately 
after  making  arrests.  The  court  held  that,  while  the  fact  of 
the  arrest  might  be  proved  by  such  an  entry,  the  doctrine  would 
not  be  extended  to  cover  other  collateral  matters  stated  in  an 
entry.^^*' 


181.  AS  TO  ORAL  DECIiARATIONS— Tlie  exception  in  Amer- 
ica is  confined  to  written  entries;  in  England  it  ex- 
tends to  oral   declarations   as   w^ell. 

It  has  recently  been  held,  however,  by  an  English  Court, 
'  that  a  declaration  made  by  a  physician  to  a  patient  with  respect 
to  the  cause  of  her  illness  was  inadmissible,  and  it  may  indicate 
a  tendency  to  a  narrowing  of  the  rule.^^^ 

150  Chambers  v.  Bernasconi,  1  Cromp.  &  J.  451.  Bayley,  B.,  says 
(page  458) :  "I  doubt,  even  supposing  this  paper  was  receivable  at 
all,  whether  it  was  receivable  to  prove  the  place  where  the  arrest 
happened.  It  may  be  the  duty  of  the  sheriff's  officer  to  make  a  re- 
turn to  the  sheriff  that  he  has  made  the  arrest,  but  it  is  not  a  neces- 
sary part  of  that  duty  that  he  sliould  state  the  particular  place  of 
the  arrest."  It  will  be  observed  that  the  opinion  is  based  on  the 
fact  of  absence  of  duty  to  report  place  of  arrest.  If  it  were  conced- 
edly  the  duty  of  the  officer  to  report  the  place  as  well  as  the  fact 
of  arrest,  qurere,  whether  it  would  not  be  admissible.  See  Lord  Den- 
man's  opinion  in  same  case  in  the  exchequer  chamber  (Cromp.,  M. 
&  R.  347,  367),  when  he  says:  "Admitting,  then,  for  the  sake  of  ar- 
gument, that  the  entiy  tendered  was  evidence  of  the  fact,  and  even 
of  the  day  when  the  arrest  was  made  (both  which  facts  it  might  be 

151  Dawson  v.  Dawson,  22  T.  D.  R.  52.     A  comment  on  this  case 
will  be  found  in  19  Harvard  Law  Rev.  301. 


§  182)      REAL  EXCEPTIONS  TO  GENERAL  RULE.         311 

The  generally  prevailing  doctrine  in  America  requires  that 
the  declarations  be  in  writing ;  the  exception  relates  to  entries 
strictly  speaking,  and  does  not  extend  to  oral  statements.^  ^- 
In  England  the  development  was  somewhat  broader,  and  ex- 
tended to  oral  declarations  made  in  the  performance  of  duty.^" 


182.  MEANING  OF  "REGULAR  COURSE  OF  BUSINESS"— 
By  "regular  course"  is  meant  regular  routine,  follow- 
ed in  the  daily  conduct  of  a  business.  The  exception 
does  not  extend  to  all  entries  made  in  connection  with 
the   carrying  on  of  a  business. 

In  respect  to  the  conditions  under  which  entries  are  made, 
the  English  and  American  doctrines  have  developed  along  dif- 
ferent lines.  In  England,  the  tendency  was  to  emphasize  the 
element  of  duty.  It  was  required  that  the  entry  be  one  which 
the  person  had  made  in  the  performance  of  a  duty.^^*    It  was 

necessary  for  the  officer  to  roake  known  to  his  principal),  we  are  all 
clearly  of  the  opinion  that  it  is  not  admissible  to  prove  in  what  par- 
ticular spot  within  the  bailiwick  the  caption  took  place,  that  circiun- 
stauce  being  merely  collateral  to  the  duty  done."  See,  also.  Smith 
V.  Bleakey,  L.  R.  2  Q.  B.  332. 

152  Manning  v.  School  Dist.  No.  6.  124  Wis.  Si,  102  N.  W.  356, 
where  the  verbal  report  of  an  expert  made  in  the  course  of  his  em- 
ployment was  held  inadjnissible.  Nor  is  the  statement  made  by  the 
cashier  of  a  bank  to  a  customer  admissible.  Equitable  Mfg.  Co.  v. 
Howard,  140  Ala.  252,  37  South.  106. 

153  In  the  Sussex  Peerage  Case,  11  Clark  &  F.  85,  Lord  Campbell 
says  (page  113) :  "By  the  law  of  England  the  declarations  of  deceas- 
ed persons  are  not  generally  admissible  unless  they  are  against  the 
pecuniaiy  interest  of  the  party  making  them.  There  are  two  excep- 
tions:  First,  where  a  declaration,  by  word  of  mouth  or  by  writing, 
is  made  in  the  course  of  business  of  the  individual  making  it,  there 
it  may  be  received  in  evidence,  though  it  is  not  against  his  interest," 
—and  cites  Doe  v.  Turford,  3  Barn.  &  Adol.  890.  See,  also,  Stapyl- 
ton  V.  Clough,  2  El.  &  Bl.  933,  937.  In  Reg.  v.  Buckley,  13  Cox,  Cr. 
Cas.  293,  which  was  a  trial  for  murder,  the  prosecution  offered  to 
show  the  verbal  report  of  the  deceased,  who  was  a  constable,  to  his 
superior  officer,  as  to  where  he  was  going  on  the  night  of  the  mur- 
der. It  seems  he  had  reported  that  he  was  going  to  watch  the  ac- 
cused, who  on  a  previous  occasion  had  been  convicted  of  larceny, 
chiefly  on  the  evidence  of  deceased.     It  was  held  admissible. 

154  In  Reg.  V.  Inhabitants  of  Worth,  4  Adol.  &  E.  132,  an  entry 
made  by  an  employer  in  which  he  regularly  kept  minutes  of  his  con- 


312  HEARSAY.  (Ch.  11 

not  sufficient  that  the  entry  was  made  in  the  regular  routine  of 
business.  The  person  making  it  must  have  been  under  a  duty 
either  to  the  public  or  to  a  private  employer  to  make  it.  In 
America  the  general  doctrine  is  that  the  entry  will  be  admissi- 
ble if  made  in  the  ordinary  course  of  business  without  regard 
to  the  existence  of  any  special  duty  in  reference  to  it.^^^ 


183.  MUST  BE  CONTEMPORANEOUS— To  be  admissible,  the 
entries  must  be  original,  contemporaneous  entries; 
but  the  fact  that  they  have  been  first  jotted  do^irn  as 
memoranda,  and  shortly  afterwrards  regularly  enter- 
ed, does  not  destroy  their  admissibility  in  this  respect. 

An  entry  is  an  original  one  if  made  by  the  party  within 
whose  personal  knowledge  the  fact  is.  It  is  immaterial  that  he 
may  have  made  the  entry  in  several  different  places.  In  such 
case  any  one  of  the  entries  would  be  admissible,  provided,  of 
course,  it  satisfied  the  other  requirements  as  to  this  exception. 
It  frequently  happens  that  an  employe  is  in  the  habit  of  jotting- 
down  memoranda  of  facts  to  be  afterwards  entered  in  the  regu- 
lar course.  This  is  no  objection  to  the  admissibility  of  the  en- 
tries as  finally  entered.  But  the  entries  are  inadmissible  if  the 
party  making  them  had  at  the  time  no  personal  knowledge  in 
respect  to  them.^^^ 

tracts  with  his  employes  was  offered  and  rejected.  Lord  Denmaii 
says  (page  137) :  "In  a  case  of  this  kind  the  entry  must  be  against 
the  interest  of  the  partj'  who  writes  it,  or  made  in  the  discharge  of 
some  duty  for  which  he  is  responsible."  So,  also,  an  entry  hy  a  bro- 
ker in  a  daybook  of  his  transactions  with  a  firm  was  held  to  be  in- 
admissible on  the  same  ground.  Massey  v.  Allen,  L.  R.  13  Ch.  Div. 
558,  562. 

155  Thus,  in  a  case  where  a  party's  age  was  in  question,  it  was 
held  that  an  entry  of  his  baptism  made  by  a  Roman  Catholic  priest 
as  a  church  record,  was  admissible,  though  there  was  no  duty  im- 
posed on  him  by  law  to  keep  such  a  record.  Kennedy  v.  Doyle.  10 
Allen  (Mass.)  161.  See,  also,  Inhabitants  of  Augusta  v.  Inhabitants 
of  Windsor,  19  Me.  317. 

156  Peck  V.  Valentine,  94  N.  Y.  569.  The  question  in  this  case  came 
up  under  the  following  circumstances :  A.  sued  X.  for  conversion 
of  funds,  and  to  show  that  X.,  who  was  his  (A.'s)  agent  for  the  sale 
of  lumber,  had  not  entered  in  his  cashbook  all  moneys  received  from 
sales,  called  L,  as  a  witness,  who  testified  that  he  made  on  a  loose 


§  184)      REAL  EXCEPTIONS  TO  GENERAL  RULE.         313 

There  has  been  some  tendency  to  broaden  the  rule,  and,  in 
cases  where  the  entries  are  made  pursuant  to  a  regular  busi- 
ness duty,  to  allow  them  in  evidence,  even  though  not  made  by 
the  original  observer/ ^'^  Entries  must  be  contemporaneous 
with  the  transactions  to  which  they  relate.^ ^^  There  is  no  fixed 
rule  with  respect  to  what  length  of  time  between  the  fact  chron- 
icled and  the  making  of  the  entry  may  elapse.  It  is  largely  a 
question  of  fact  in  each  particular  case.  The  nature  of  the 
business,  the  usual  methods  of  carrying  it  on,  the  circumstan- 
ces under  which  the  entry  is  made,  all  must  be  considered  in 
determining  this  question. 


184.  BY  ^VHOM  ENTRIES  MADE— Entries  are  admissible, 
-whether  made  by  a  principal  or  subordinate,  by  an 
employer    or   employe. 

It  is  quite  clear  that  there  is  a  difiference  with  respect  to  the 
ground  of  reliability  between  entries  made  by  a  tradesman  him- 
self and  entries  made  by  his  clerk.  So  far  as  the  absence  of 
self-interest  resulting  from  the  perfunctory  nature  of  the  act 

piece  of  paper  memoranda  of  sales  for  18  clays,  and  gave  the  mem- 
oranda to  A.  A.  then  testified  he  had  copied  the  memoranda  into 
a  book,  and  produced  the  boolv,  but  said  he  had  lost  the  original  mem- 
oranda. The  court  excluded  the  entries.  Another  case  having  some 
points  of  similarity  may  be  compared  with  this,  namely,  Mayor,  etc., 
of  New  York  v.  Railway  Co.,  102  N.  Y.  572,  7  N.  PI  90.5,  55  Am.  Rep. 
8.39.  To  prove  the  number  of  daj's'  work  performed  and  the  quan- 
tity of  material  used  in  the  repair  of  a  street,  the  defendant  offered 
in  evidence  a  time  book  and  memorandum  book  kept  by  a  foreman. 
The  entries  were  made  in  these  books  by  the  foreman  upon  the  re- 
port to  him  twice  a  day  of  the  facts  by  the  gang  foremen.  The  fore- 
man Identified  the  entries,  and  the  gang  foremen  testified  that  they 
correctly  reported  to  the  foreman  the  facts.  It  was  held  that  the 
entries  were  admissible.  The  court  itself  distinguished  this  case 
from  the  case  of  Peck  v.  Valentine  by  the  fact  that  the  latter  was 
the  case  of  a  mere  private  memorandum,  while  in  this  case  the  en- 
tries were  made  and  the  books  kept  in  the  regular  course  of  busi- 
ness. 

157  Drumm-Flato  Commission  Co.  v.  Bank,  107  Mo.  App.  426,  81 
S.  W.  503;    see  note  and  cases  cited  18  Harvard  Law  Rev.  52. 

158  Poole  V.  Dicas.  1  Bing.  N.  C.  649;  Norman  Printers'  Supply 
Co.  V.  Ford,  77  Conn.  461,  59  Atl.  499 ;  Wells  v.  Hobson,  91  Mo.  App. 
379. 


314  HEARSAY.  (Ch.  11 


& 


goes,  an  entry  made  by  a  clerk  is  much  more  likely  to  be  re- 
liable than  one  made  by  the  proprietor.  How  far  the  greater 
interest  in  having  a  proper  and  accurate  record  of  his  business 
transactions  on  the  part  of  the  proprietor  would  offset  this  may 
be  a  pertinent  query.  The  courts  generally  looked  at  it  from 
the  other  standpoint,  and  accordingly  were  at  first  inclined  to 
exclude  entries  made  by  tradesmen  in  their  own  books  as  self- 
serving,  while  admitting  those  made  by  clerks.^  ^^  Subsequent- 
ly the  exception  was  extended  to  include  the  former  class  of  en- 
tries, and  this  is  the  generally  accepted  doctrine  to-day.^^°  The 
illustrations  afforded  by  the  cases  of  the  application  of  the  ex- 
ceptions cover  all  classes  of  business,  and  the  professions  as 
well.^®^  The  cases  of  entries  with  respect  to  the  presentation 
and  protest  of  bills  and  notes  by  bank  employes  and  notaries 
are  quite  common.^^-  Such  entries  are  always  admitted,  and 
are  excellent  illustrations  of  the  advantage  of  the  exception  in 
the  proof  of  formal  matters  which  it  would  be  quite  burden- 
some to  require  to  be  proved  by  direct  evidence.^®^ 

185.  "WHAT  DISABILITIES  SUFFICIENT— Tlie  general  doc- 
trine in  America  is  that  death,  insanity,  or  absence 
from  the  jurisdiction  will  justify  the  admission  of  the 
entries;  lo*  and  in  some  states  they  are  admitted, 
though  the  party  be  present  in  court,  if  duly  authen- 
ticated by  him.  In  England  the  exception  is  confined 
to  cases  of  death  alone. 

159  Ellis  V.  Cowne,  2  Car.  &  K.  719;  Bland  v.  Warren,  65  N.  C 
372. 

160  Dane,  Abr.  c.  81,  art.  4,  §  7;  Ciirren  v.  Crawford,  4  Serg.  & 
R.  (Pa.)  3;  Vosbiirgh  v.  Thayer.  12  Johns.  (N.  Y.)  4G1 :  Foster  v. 
Sinkler,  1  Bay  (S.  C)  40.  The  doctrine  is  usually  based  by  the  courts 
on  necessity;  it  being  said  that  "from  the  necessity  of  the  case,  as 
business  is  often  carried  on  by  the  principal,  and  many  of  our  trades- 
men do  not  keep  clerks,  the  book,  proved  by  the  oath  of  the  plain- 
tiff himself,  has  always  been  admitted." 

161  Entries  by  a  Catholic  priest,  Kennedy  v.  Doyle,  10  Allen  (Mass.) 
161 ;  by  a  doctor.  Inhabitants  of  Augusta  v.  Inhabitants  of  Windsor, 
19  Me.  317 ;    by  a  bank  teller,  Henry  v.  Oves,  4  Watts  (Pa.)  46. 

162  Poole  V.  Dicas,  1  Bing.  N.  C.  649 ;  Welsh  v.  Barrett,  15  Mass. 
380;    Nicholls  v.  Webb,  8  Wheat.  (U.  S.)  326,  5  L.  Ed.  628. 

163  See  opinion  of  Shaw,  J.,  in  Shove  v.  Wiley,  18  Pick.  (Mass.) 
558. 

164  Three  cases  in  Massachusetts  illustrate  the  development  of  the 


§  186)      REAL  EXCEPTIONS  TO  GENERAL  RULE.         315 

The  early  rule  was  that  such  entries  would  be  allowed  only 
in  case  of  the  death  of  the  person  making  them.  This  was  the 
original  rule  in  this  country  as  well  as  in  England;  ^®^  but  it 
was  soon  extended  to  cases  of  insanity  and  where  the  witness 
had  absconded/*'*^  It  is  the  practice  in  several  of  the  states  now 
to  receive  such  entries  even  though  the  witness  be  living.  It 
is  not  meant  that  they  are  received  to  refresh  the  witness'  mem- 
ory, which  has  always  been  allowable,  but  that  they  are  admit- 
ted as  themselves  evidence,  though  the  witness  swears  they  do 
not  refresh  his  memory.^*^^ 


DECLARATIONS    AGAINST    INTEREST. 

186.  Declarations,  oral  or  written,  of  deceased  persons,  made 
■while  the  declarants  w^ere  in  a  position  to  know  of 
the  matters  stated,  and  which  are  against  pecuniary 
or    proprietary   interest,    are    admissible. i68 

Declarations  against  interest  must  not  be  confused  with  ad- 
missions or  confessions.    They  are  received  upon  totally  differ- 

rule:  Union  Bank  v.  Knapp,  3  Pick.  (Mass.)  96,  15  Am.  Dec.  181; 
Nortli  Bank  v.  Abbot,  13  Pick.  (Mass.)  465,  25  Am.  Dec.  334;  Shove 
V.  Wiley.  18  Pick.  (Mass.)  558.  See,  also,  Coslello  v.  Crowell,  133 
Mass.  352 ;    Cbafifee  v.  U.  S.,  18  Wall.  (U.  S.)  516,  541,  21  L.  Ed.  908. 

165  Farmers'  Bank  of  Lancaster  v.  Wbitebill,  16  Serg.  &  R.  (Pa.) 
89,  wbere  it  is  said:  "It  has  recently  been  settled  that  the  memo- 
randums, made  at  the  time,  by  a  person  in  the  ordinary  course  of 
his  business,  of  acts  and  matters  which  his  duty  in  such  business 
required  him  to  do  for  others,  are  admissible  evidence  of  the  acts 
and  matters  so  done  after  his  death.  But,  if  he  is  living,  he  must 
be  called."  See,  also,  Welsh  v.  Barrett,  15  Mass.  380;  Nicholls  v. 
Webb,  8  Wheat.  (U.  S.)  326.  337,  5  L.  Ed.  628 ;  Bell  v.  Perkins,  Peck 
(Tenn.)  261,  14  Am.  Dec.  745. 

166  Union  Bank  v.  Knapp,  3  Pick.  (Mass.)  96,  15  Am.  Dec.  181; 
North  Bank  v.  Abbot.  13  Pick.  (Mass.)  466,  25  Am.  Dec.  334. 

167  Guy  V.  Mead,  22  N.  Y.  462;  Mayor,  etc.,  of  New  York  v.  Rail- 
way Co.,  102  N.  Y.  572,  7  N.  E.  905,  55  Am.  Rep.  839 ;  Bank  of  Mon- 
roe V.  Cnlver,  2  Hill  (N.  Y.)  531 ;  Shove  v.  Wiley,  18  Pick.  (Mass.) 
558 ;  Perkins  v.  Insurance  Co.,  10  Gray  (Mass.)  323,  71  Am.  Dec.  654 ; 
Smith  v.  Lane,  12  Serg.  &  R.  (Pa.)  80.  See,  also,  note  to  Price  v. 
Torrington,  Smith,  I^ead.  Cas.  572. 

168  A  line  of  prominent  early  English  cases  is  cited  in  Thayer, 
Cas.  Ev.  (2d  Ed.)  pp.  474—476,  showing  the  beginnings  of  the  doctrine. 


316  HEARSAY.  (Ch.  11 

ent  principles.  As  has  already  been  said,^®^  admissions  and 
confessions  are  waivers  of  proof.  Declarations  against  interest, 
on  the  contrary,  are  admitted  as  direct  evidence  of  the  facts 
declared.  They  are  the  testimony  of  the  deceased  declarant,  ad- 
mitted as  an  exception  to  the  hearsay  rule.  They  find  their 
guaranty  of  reliability  in  the  circumstance  that  they  are  against 
the  interest  of  the  person  who  made  them,  and  presumably  he 
would  not  have  made  them  had  they  been  false.^^"  Receipts 
given  for  money  payments,"^  entries  in  books  of  account 
showing  receipt  of  money,^^-  or  of  services,^'^  or  the  exist- 
ence of  indebtedness,^'^*  and  declarations  disparaging  title  to 
real  estate, ^^"  are  a  few  of  the  many  examples  of  the  applica- 
tion of  this  exception.^'* 


DECLARATIONS   MUST   HAVE   BEEN    SPONTANEOUS. 

187.  Such  declarations  must  have  been  made  prior  to  the 
time  when  there  might  have  been  in  contemplation 
their  subsequent  use  as  evidence'. 

The  declarations  first  brought  within  it  seem  to  have  been  those  con- 
tained in  receipts  and  other  papers  ackno\Yledglng  the  payment  of 
money.     See  Searle  v.  Lord  Barrington,  2  Strange,  826. 

169  Ante,  p.  146. 

170  Framingham  Mfg.  Co.  v.  Barnard,  2  Pick.  (Mass.)  532;  Hink- 
ley  V.  Davis,  6  N.  H.  210,  25  Am.  Dec.  457;  Baker  v.  Taylor,  54 
Minn.  71.  55  N.  W.  823. 

IT  1  Taylor  v.  Gould,  57  Pa.  152,  1.56. 

17  2  Middleton  v.  Melton,  10  Barn.  &  C.  817;  Heidenheimer  v.  John- 
son, 76  Tex.  200,  13  S.  W.  46. 

173  Chase  v.   Smith,  5  Vt.  556,  559. 

17  4  Peace  v.  .Jenkins,  32  N.  C.  355;  Bartlett  v.  Patton,  33  W.  Va. 
72,  82,  10  S.  E.  21,  5  L.  R.  A.  523. 

17  5  Bo\Yen  V.  Chase,  98  U.  S.  2.54,  262,  25  L.  Ed.  47;  Ellis  v.  Har- 
ris, 106  N.  C.  395,  11  S.  E.  248;  Tyres  v.  Kennedy,  126  Ind.  523,  26 
N.  E.  394. 

176  A  rule  has  been  sometimes  broadened  by  statute  so  as  to  in- 
clude declarations  against  interests  other  than  pecuniary  and  pro- 
prietary. St.  Mass.  1898,  c.  535,  where  it  is  provided  that  "no  dec- 
laration of  a  deceased  person  shall  be  excluded  as  evidence  on  the 
ground  of  its  being  hearsay,  if  it  appears  to  have  been  made  in  good 
faith  before  the  beginning  of  the  suit  and  on  the  personal  knowledge 
of  the  declarant."  Under  the  provision  of  this  statute  it  is  held  that 
the  declaration  of  a  husband  with  respect  to  land  devised  to  him. 


§  187)      EEAL  EXCEPTIONS  TO  GENERAL  RULE.         317 

If  it  appear  that  at  the  time  of  the  making  of  the  declaration 
the  situation  was  such  that  its  use  in  evidence  might  have  been 
in  the  mind  of  the  party,  the  declaration  is  inadmissible.  As 
an  example  of  what  is  meant,  take  the  rule  as  to  payment  of  a 
bond  or  other  sealed  obligation  being  assumed  after  20  years. 
If  payment  of  a  bond  be  in  question,  and  an  indorsement  of  in- 
terest on  the  bond  by  the  obligee  be  offered  to  prove  that  it 
was  not  paid,  such  indorsement  is  admissible  only  in  case  it 
appears  to  have  been  made  before  the  expiration  of  the  20- 
years  limitation. ^'^  If  made  afterwards,  it  might  have  been  for 
the  purpose  of  avoiding  the  effect  of  the  rule.  This  is  a  mat- 
ter, however,  where  the  effectiveness  of  the  evidence  is  con- 
cerned, rather  than  the  admissibility.  The  rule — a  presump- 
tion, as  it  is  called  in  the  cases — is  an  absolute  rule  of  law,  and 
the  evidence,  whether  a  declaration  against  interest  or  evidence 
of  another  sort,  is  ineffective  in  opposition  to  the  rule.^'*  The 
principle  referred  to  in  the  heading  goes  to  the  good  faith  of 
the  declarations.  They  must  appear  to  have  been  spontaneous, 
and  made  with  no  ulterior  purpose,  nor,  indeed,  with  any  ap- 
parent opportunity  for  the  existence  of  such  a  purpose. ^'^^ 

with  power  to  convey  it  wlienever  conducive  to  bis  comfort,  to  the 
effect  that  he  had  conveyed  it  in  order  that  his  children  might  in- 
herit, was  admissible.  Stocker  v.  Foster,  178  Mass.  591,  GO  N.  E. 
407. 

177  Gleadow  v.  Atkin,  1  Cromp.  &  M.  408,  424.  A  good  illustra- 
tion of  the  same  declaration  being  in  favor  or  against  the  intei'ests 
of  a  party  according  to  circumstances  of  the  suit  is  found  in  Mutu- 
al Life  Ins.  Co.  v.  Logan,  87  Fed.  6.37,  31  C.  C.  A.  172.  Here  it  was 
held  that  a  declaration  of  a  deceased  policy  holder,  acknowledging 
liability  on  a  premium  note,  was  inadmissible ;  the  suit  being  on  the 
policy  of  insurance.  Had  the  suit  been  on  the  note  against  the  es- 
tate of  the  maker,  the  declaration  would,  of  course,  have  been  ad- 
missible, perhaps  not  as  within  this  exception,  so  much  as  being 
within  the  ordinary  rule  as  to  admission. 

17  8  Glynn  v.   Bank,  2  A^es.   Sr.  38,   43. 

17  9  Searle  v.  Lord  Barrington,  2  Strange,  826;  Johnson  v.  Cole, 
178  N.  Y.  364,  70  N.  E.  878. 


318  HEARSAY.  (Ch.  11 


MUST  BE  AGAINST   PECUNIARY   OR    PROPRIETARY   IN- 
TEREST. 

188.  Declarations  are  against  interest,  within  the  principle 
of  this  exception,  only  -when  they  are  against  the  pe- 
cuniary or  proprietary  interest  of  the  person  making 
them. 

The  law  does  not  recognize  in  this  connection  any  purely 
sentimental  interest.  It  must  be  a  money  or  property  interest 
which  is  prejudiced  by  the  declaration  in  order  to  bring  it  with- 
in the  exception. ^^°  The  interest  must  be  a  present,  immediate 
interest,  and  not  contingent  upon  some  remote  event  happen- 
ing. Thus  an  entry  admitting  the  receipt  of  cases  of  goods 
was  held  not  against  interest  on  the  ground  it  would  make  the 
party  liable  only  in  the  event  of  the  goods  being  lost.^^^  A 
statement  is  against  pecuniary  interest  when  its  tendency  is  to 
take  away  from  or  lessen  the  pecuniary  value  of  property  of  the 
person  making  the  declaration  or  impose  upon  him  pecuniary 
liability  of  any  kind.^®^    It  is  against  proprietary  interest  when 

180  Com.  V.  Densmore,  12  Allen  (Mass.)  535,  537;  Tate  v.  Tate's 
Ex'r,  75  Va.  522,  532;  Hart  v.  Kendall.  82  Ala.  144,  147,  3  South. 
41 ;  Helm  v.  State,  67  Miss.  562,  572,  7  South.  487 ;  Hosford  v.  Rowe, 
41  Minn.  245,  42  N.  W.  1018;  Poorman  v.  Miller,  44  Cal.  269.  But 
see  Coleman  v.  Frazier,  4  Rich.  Law  (S.  C.)  146,  153,  53  Am.  Dee. 
727.  In  Western  Maryland  R.  Co.  v.  ilanro,  32  Md.  280,  it  was  held 
that  a  declaration  by  an  officer  that  a  subscriber  had  paid  him  five 
dollars  on  account  of  a  subscription  to  stock  was  not  against  inter- 
est, within  the  meaning  of  the  exception.  A  peculiar  case  arose  in 
Locklayer  v.  Locklayer.  139  Ala.  354.  35  South.  1008,  where  a  state- 
ment made  by  deceased  to  a  court  that  he  was  a  negro  was  admit- 
ted— an  unjustifiable  extension,  it  would  seem,  of  the  rule.  A  dec- 
laration by  deceased  that  his  lungs  were  weak  was  held  inadmissi- 
ble, in  an  action  on  a  policy  insuring  him  in  case  of  death  resulting 
solely  from  accident;  it  being  held  that  such  declaration  was  not 
against  his  pecuniary  interests,  since  it  would  not  in  any  way  in- 
crease his  premiums  or  assessments,  or  lessen  his  interests  in  the 
policy.  Railway  Officials'  &  Employees'  Ace.  Ass'n  v.  Coady,  80  111. 
xVpp.  503. 

181  Smith  V.  Blakey,  L.   R.  2  Q.  B.  .326. 

182  A  peculiar  case,  illustrative  of  the  nature  of  the  interest  con- 
templated by  the  rule,  is  found  in  Humes  v.  O'Bryan,  74  Ala.  64: 
A.  brought  suit  against  X.  and  Y.  as  partners.     Y.  having  died,  the 


§  188)      REAL  EXCEPTIONS  TO  GENERAL  RULE.         319 

it  tends  to  cast  reflections  or  doubts  upon  the  ownership  of 
property  by  the  person  making  the  declaration.  The  pecuniary 
or  proprietary  interest  must  be  positive  and  tangible,  in  order 
to  render  declarations  against  it  admissible.  The  mere  absence 
of  interest  does  not  satisfy  the  condition  that  the  statement 
must  be  against  interest.^^^  The  interest  must  be  possessed  by 
the  party  at  the  time  of  the  making  of  the  declarations.  Dec- 
larations made  prior  to  the  acquiring  of  the  interest,  or  after 
parting  with  it,  are  not  admissible.^ ^* 

suit  was  pressed  against  X.  alone.  X.  denied  his  partnership  with 
Y.,  and  to  prove  his  case  offered  declarations  made  by  Y.  to  the  ef- 
fect that  he  (X.)  was  not  a  partner.  It  appeared  that  the  business 
in  which  it  was  claimed  X.  was  a  partner  was,  at  the  time  Y.  made 
these  declarations,  insolvent.  The  court  held  that  this  fact  made 
the  declarations  against  interest,  within  the  exception,  saying  (page 
79) :  "This  fact,  it  must  be  noticed,  is  of  vital  importance,  as  affect- 
ing the  question  of  interest.  In  the  absence  of  the  fact  of  insolven- 
cy, it  is  manifest  that  the  converse  proposition  that  Humes  [X.]  was 
a  partner  of  the  declarant  would  be  a  declaration  against  his  inter- 
est. This  is  so  because,  if  time,  it  would  entitle  Humes  to  a  half 
interest  in  the  partnership  assets.  *  *  *  The  assertion,  there- 
fore, that  Humes  was  not  a  partner,  having  been  made  at  a  time 
when  the  partnership  business  had  failed,  it  was  a  declaration  ex- 
onerating him  from  a  pecuniary  liability  for  the  partnership  debts, 
and,  if  true,  to  this  extent  doubled  the  ultimate  amount  of  Glover's 
[Y.'s]  liability.  *  *  *  "  An  example  of  a  declaration  of  partner- 
ship, such  as  cited  above,  which  was  held  to  be  admissible  as  against 
interests,  is  found  in  Card  v.  Moore,  173  N.  Y.  .598.  G6  N.  E.  1105, 
which  was  a  case  where  one  partner  held  in  his  own  name  certain 
property,  and  it  was  held,  in  an  action  by  the  surviving  partner  to 
recover  such  property,  that  statements  that  a  partnership  in  fact  ex- 
isted, made  by  a  deceased  partner,  could  be  introduced.  A  declara- 
tion by  a  deceased  that  he  was  only  the  guardian  of  a  child  has  been 
held  to  be  in  favor  of  his  interest,  and  therefore  inadmissible,  on  the 
theory  that,  where  adoption  of  the  child  was  alleged,  such  declara- 
tions, if  true,  tend  to  show  that  neither  deceased  nor  his  property 
would  be  subject  to  the  obligation  resulting  from  legal  adoption. 
Rulofson  V.  Billings,  140  Cal.  452,  74  Pac.  35.  Accordingly,  in  White 
v.  Holman,  25  Tex.  Civ.  App.  152,  60  S.  W.  437,  we  find  a  declaration 
that  a  child  was  an  adopted  child  was  held  to  be  admissible  as 
against  interest. 

18  3  Barker  v.  Ray,  2  Russ.  63,  76. 

184  Hutchins  v.  Hutchins,  98  N.  Y.  56,  64;  Holmes  v.  Roper,  141 
N.  Y.  64,  67,  36  N.  E.  ISO ;  Beedy  v.  Macomber,  47  Me.  451 ;  John- 
son V.  Burks,  103  Mo.  App.  221,  77  S.  W.  133.     It  is  held  that  dec- 


320  HEARSAY.  (Ch.  11 


DEATH  A  PREREQUISITE. 

189.  It  is  well  established  in  England,  and  generally  in  this 
country,  that  it  is  only  in  case  of  death  that  such 
declarations   are    admitted. 

This  is  one  of  the  cases  where  the  declarations  are  confined 
strictly  to  those  of  deceased  persons.  While  the  fact  of  their 
being  against  interest  gives  them  their  character  of  reliability, 
it  is  essential  to  their  use  that  the  persons  making  them  are  ab- 
solutely prevented  by  death  from  appearing  and  testifying  di- 
rectly to  the  facts  declared.  Incapacity  to  testify  is  generally 
held  not  sufficient  to  render  them  admissible,^ ^^  though  in 
some  jurisdictions  there  seems  to  be  a  tendency  to  extend  the 
exception  to  cases  of  absolute  incapacity. ^^"^ 


KIND    OF   DECLARATIONS   ADMITTED. 

190.    The   declarations  may  be   either  written   or  oral.isT 

The  cases  of  oral  declarations  are  not  so  frequent  as  those 
where  written  entries  are  involved,  but  the  principle  is  the  same 
with  respect  to  them,  if  it  appear  that  they  satisfy  the  condi- 
tions of  admissibility.^ ^^    The  principal  cases  in  which  oral  dec- 

laratious  made  subsequent  to  parting  with  title  cannot  be  given  in 
evidence  to  contradict  declarations  made  while  in  possession,  which 
have  been  introduced.  Royal  v.  Chandler,  79  Me.  265,  9  Atl.  615, 
1  Am.  St.  Rep.  305. 

185  Currier  v.  Gale,  14  Gray  (Mass.)  504,  77  Am.  Dec.  343;  Coun- 
ty of  Mahaska  v.  Ingnlls.  16  Iowa,  81,  95 ;  Tranimell  v.  Hndmon, 
78  Ala.  222 ;  Harrison  v.  Blades,  3  Camp.  457 ;  Stephen  v.  Gwenap, 
1  Moody  &  R.  120;   Lowry  v.  Moss,  1  Strob.  (S.  C.)  63. 

ISO  Fitch  V.  Chapman,  10  Conn.  8;  Harriman  v.  Brown,  S  Leigh 
(Va.)  697,  713. 

18T  Reg.  V.  Overseers  of  Birmingham,  1  Best  &  S.  763.  772;  Field 
v.  Boynton.  33  Ga.  239.  In  Massacluisetts  it  seems  that  oral  decla- 
rations against  pecuniary  interests  are  not  admissible,  though  the 
exception  is  recognized  as  to  written  entries  (Lawrence  v.  Kimball, 
1  Mete.  [Mass.]  524) ;  but  oral  declarations  against  proprietary  in- 
terests are  admitted  (Marcy  v.  Stone,  8  Cush.  [Mass.]  4,  54  Am.  Dec. 
736). 

188  Bartlett  v.  Patton,  33  W.  Va.  72,  10  S.  E.  21.  5  L.  R.  A.  523. 


§  190)      REAL  EXCEPTIONS  TO  GENERAL  RULE.         321 

larations  are  offered  consist  of  cases  where  persons  in  posses- 
sion of  real  estate  have  made  statements  as  to  the  nature  of 
their  holding/ ^^  though  the  rule  as  to  the  admission  of  oral 
declarations  is  not  confined  to  this  class  of  cases.  Oral  declara- 
tions against  interest  concerning  land  have  been  held  to  be  ad- 
missible, on  the  ground  that  they  were  part  of  the  res  gestae.^®" 
The  doctrine  of  res  gestae  is  not,  however,  the  true  basis  of 
the  admission  of  this  class  of  declarations.     If  it  were,  there 


Blackburn,  J.,  says  in  Reg.  v.  Overseers  of  Birmingham,  1  Best  & 
S.  7G3 :  "Lastly,  is  there  any  distinction  in  this  respect  between  a 
written  entry  and  an  entry  proved  by  parol?  I  can  see  a  great  dif- 
ference between  them  in  weight,  for  a  parol  statement  has  in  many 
cases  no  weight  at  all.  But,  when  the  fact  of  a  parol  statement  hav- 
ing been  made  is  satisfactorily  proved,  I  cannot  see  any  distinction, 
as  regards  admissibility,  between  it  and  a  written  one,  and  no  such 
distinction  is  talien  in  the  cases."  In  County  of  Mahaska  v.  Ingalls, 
16  Iowa,  81,  after  a  careful  examination  of  the  authorities,  the  doc- 
trine is  summed  up  by  the  court  as  follows:  "This  species  of  testi- 
mony being  somewhat  anomalous  in  its  character,  and  standing  on 
the  ultima  thule  of  competent  testimony,  is  not  highly  favored  by 
the  courts,  and  the  tendency  is  rather  to  restrict  than  to  enlarge  the 
right  to  receive  it,  or,  at  least,  to  require  the  evidence  to  be  brought 
within  all  the  conditions  requisite  for  its  reception.  From  the  un- 
brolven  current  of  English,  and  the  decided  preponderance  of  Amer- 
ican, authority,  we  think  the  present  state  of  the  law  is  that  ver- 
bal declarations  are  receivable,  when  accompanied  by  the  following 
prerequisites :  (1)  The  declarant  must  be  dead.  *  *  *  (2)  The 
next  prerequisite  is  that  the  declaration  must  have  been  against  the 
interest  of  the  declarant  at  the  time,  and  that  interest  must  be  a 
pecuniary  one.  *  *  *  (3)  The  declaration  must  be  of  a  fact  or 
facts  in  relation  to  a  matter  concerning  which  the  declarant  was  im- 
mediately and  personally  cognizable.  *  *  *  (4)  in  addition,  the 
court  should,  upon  the  circumstances  of  the  particular  case,  be  sat- 
isfied that  there  was  no  probable  motive  to  falsify  the  fact  declar- 
ed." Halvorsen  v.  Lumber  Co.,  87  Minn.  18,  91  N,  W.  28,  94  Am. 
St.  Rep.  669. 

189  In  Caldwell  v.  Caldwell,  24  Pa.  Super.  Ct.  230,  the  declara- 
tions were  made  by  the  father,  who  held  title  to  the  land,  posses- 
•  sion  of  which  was  held  by  a  son.  The  declarations  in  question,  be- 
ing to  the  effect  that  the  land  had  been  given  by  him  to  his  son  and 
belonged  to  him,  were  held  to  be  against  interest  and  therefore  ad- 
missible. But  see  Butler  v.  Butler,  133  Ala.  377,  32  South.  579,  where 
similar  declarations  were  held  inadmissible. 

180  Marcy  v.  Stone,  8  Cush.  (Mass.)  4,  54  Am.  Dec.  736;  1  Greenl. 
Ev.  §  109. 

m'kelv.ev.(2d  ED.) — 21 


322  HEARSAY.  (Ch.  11 

would  be  no  reason  why  declarations  in  support  of  title,  as  well 
as  those  disparaging  it,  should  not  be  allowed. ^^^  In  Massachu- 
setts, where  such  declarations  were  originally  admitted  on  the 
ground  of  res  gestae,  the  courts  have  later  come  around  to  the 
proper  view  of  the  matter.^ ^^ 


SAME— SCOPE  OF  DECLARATION  AS  EVIDENCE. 

191.  The  entire  declaration  is  admissible,  tliough.  it  include 
statements  of  fact  not  in  themselves  against  interest, 
and,  -Krhen  admitted,  the  declaration  is  evidence  of  all 
that  it   states. 

The  words  which  are  strictly  against  interest  may  form  only 
a  small  portion  of  a  statement  or  an  entry.  The  context  is  nec- 
essary to  explain  the  matter  to  which  the  words  refer.  It  is 
accordingly  held  that  as  much  will  be  admitted  as  is  required  to 
make  the  matter  plain. ^^^  When  once  admitted,  the  entry  is 
evidence  of  everything  which  it  states,  even  though  it  refer  to 
collateral  matters.^"* 

i9iTayl.  Ev.  §  669. 

192  Ware  v.  Brookhouse,  7  Gray  (Mass.)  454. 

193  Higham  v.  Ridgway,  10  East,  109.  In  this  case  the  issue  was 
as  to  the  age  of  X.,  and  an  entry  in  the  daybook  and  ledger  of  a 
midwife,  showing  attendance  at  the  birth  of  X.,  the  date  thereof,  a 
charge  for  services  and  medicine,  and  that  the  same  had  been  paid, 
was  offered.  It  was  contended  that  only  the  word  "paid"  was  ad- 
missible. Lord  Ellenborough  said:  "It  is  idle  to  say  that  the  word 
'paid'  only  shall  be  admitted  in  evidence  without  the  context  which 
explains  to  what  it  refers.  We  must  therefore  look  to  the  rest  of 
the  entry  to  see  what  the  demand  was  which  he  thereby  admitted 
to  be  discharged.  By  the  reference  to  the  ledger,  the  entry  there 
is  virtually  incorporated  with  and  made  a  part  of  the  other  entry 
of  which  it  is  explanatory."  To  the  same  effect  is  Reg.  v.  Overseers 
of  Birmingham,  1  Best  &  S.  763. 

194  In  one  case  A.,  B.,  and  C.  were  joint  makers  of  a  note,  which 
A.  paid.  He  sued  B.  for  the  whole  sum  as  the  principal  debtor, 
claiming  that  he  himself  and  C.  were  sureties.  He  also  sued  C.  for 
half  of  the  amount  of  the  note  as  a  co-surety.  To  prove  his  case, 
he  offered  in  evidence  a  receipt  indorsed  on  the  back  of  the  note  by 
the  payee,  since  deceased,  acknowledging  the  payment  of  a  portion 
of  the  note,  and  containing  the  words,  "The  £300  having  been  orig- 
inally advanced  to   Evan   Humphreys   [B.]."     It  was  held  that  the 


§  192)      HEAL  EXCEPTIONS  TO  GENERAL  RULE.         323 

But  it  has  been  held  that,  where  the  declaration  contains 
statements  both  in  favor  of  the  declarant  and  also  against  his 
interest,  the  court  will  exclude  the  entire  declaration,  if  the 
part  favorable  to  the  declarant  preponderates. ^^^ 

The  question  as  to  what  a  declaration  will  be  admitted  to 
prove  has  arisen  in  the  case  of  receipts,  and,  although  an  en- 
deavor was  made  to  confine  a  receipt  to  a  showing  of  mere  pay- 
ment, the  broader  view  prevailed,  and  it  is  well  established  that 
it  will  be  received  for  all  that  it  covers.^**® 


SAME— ADMISSIBILITY    TO    BE    DETERMINED    BY    THE 

COURT. 

192.  The  question  whether  any  declaration  is  against  inter- 
est, so  as  to  be  admissible,  is  a  preliminary  question 
of  fact,   which  the   court  must   determine. 

It  is  the  duty  of  the  court  to  decide  primarily  whether  a  dec- 
laration is  prima  facie  against  the  interest  of  the  party  mak- 
ing it.  If  this  be  decided  in  the  affirmative,  the  declaration  is 
admissible.  After  the  statement  is  admitted,  the  jury  may  con- 
sider the  question  of  its  being  actually  against  interest,  and  de- 
termine the  weight  to  which  it  is  entitled.  The  declaration  may 
be  explained  by  other  evidence,  or  qualified,  so  as  to  lose  its 
effect,  in  which  case  it  may  be  disregarded  by  the  jury  en- 
tirely.^ ^'^ 

receipt  was  admissible  to  prove  that  B.  was  the  principal  debtor, 
though  the  court  expressed  a  doubt  as  to  the  correctness  of  the  rule. 
Davies  v.  Humphreys,  6  Mees.  &  W.  153.  See,  also,  Reg.  v.  Over- 
seers of  Birmingham,  1  Best  &  S.  763;  Livingston  v.  Arnoux,  56  N. 
Y.  507,  519;  Elsworth  v.  Muldoon,  15  Abb.  Prac.  (N.  S.  N.  Y.)  440, 
448;  Jones  v.  Howard,  3  Allen  (Mass.)  223;  Higham  v.  Ridgway, 
10  East,  109,  117;  McDonald  v.  Wesendonck,  30  Misc.  Rep.  601,  62 
N.  Y.  Supp.  764. 

195  Massee-Felton  Lumber  Company  v.  Sirmans,  122  Ga.  297,  50 
S.  E.  92 

196  Taylor  v.  Witham.  3  Ch.  Div.  605,  608. 

197  In  Taylor  v.  Witham,  3  Ch.  Div.  605,  Jessel,  M.  R.,  says:  "What 
is  the  meaning  of  its  being  against  his  interest?  I  adopt  the  view 
of  Mr.  Baron  Parlie  in  the  case  of  Reg.  v.  Inhabitants  of  Lower  Hey- 
ford,  2  Smith,  Lead.  Cas.  (7th  Ed.)  p.  333,  that  it  must  be  prima 
facie  against  his  interest ;    that  is  to  say,  the  natural  meaning  of  the 


324  HEAESAT.  (Ch.  11 


DYING   DECIiARATIONS— GROUND    OF    ADMISSIBILITY. 

193.  The  contemplation  of  impending  death,  is  deemed  a  suf- 
ficient guaranty  of  reliability  to  render  declarations 
admissible,  under  the  conditions  and  for  the  purposes 
mentioned  in  the  succeeding  paragraphs.  Such  dec- 
larations are  commonly  called  "dying  declarations." 

It  has  been  the  theory  of  the  law  that  a  person  in  the  presence 
of  impending  death  is  without  further  motive  to  make  false 
statements,  and  that,  earthly  considerations  having  lost  to  him 
all  significance,  his  declarations  may  be  absolutely  relied  up- 
on/^^  While  it  is  doubtless  true  that,  given  clear  and  uncloud- 
ed faculties,  the  approach  of  death  exercises  a  powerful  and 
solemnizing  influence  on  the  mind,  and  prompts  a  careful  re- 
gard for  truthful  statement,  yet  in  some  cases  passion,  hatred, 
and  other  feelings  of  like  nature  will  have  their  effect,  even  at 
the  point  of  death.  It  must  happen,  also,  not  unfrequently, 
that  the  inaccuracy  of  ideas  and  confusion  of  mind  attendant  up- 
on approaching  dissolution  will  color  a  person's  utterances.  In 
spite  of  these  dangers  of  untruthful  or  inaccurate  statements 
(dangers  which  may  be  greatly  lessened  by  proper  care  on  the 
part  of  the  court  in  determining  the  preliminary  question  of 
whether  the  conditions  are  such  as  to  render  the  declarations 
admissible),  it  is  probably  true  that  the  ends  of  justice  are  on 
the  whole  better  served  by  the  admission  of  this  class  of  dec- 
larations than  by  their  exclusion. 

entry,  standing  alone,  must  be  against  the  interest  of  the  man  who 
made  it.  Of  course,  if  you  can  prove  aliunde  that  the  man  had  a 
particular  reason  for  making  it,  and  that  it  was  for  his  interest, 
you  may  destroy  the  value  of  his  evidence  altogether,  but  the  ques- 
tion of  admissibility  is  not  a  question  of  value." 

188  In  Rex  v.  Drummond,  Leach,  Crown  Cas.  (4th  Ed.)  337,  a  com- 
paratively early  case  (1784),  the  court  says,  in  reference  to  the  ad- 
missibility of  this  class  of  declarations:  "The  principle  upon  which 
this  species  of  evidence  is  received  is  that  the  mind,  impressed  with 
the  awful  idea  of  approaching  dissolution,  acts  under  a  sanction 
equally  powerful  with  that  which  it  is  presumed  to  feel  by  a  solemn 
appeal  to  God  upon  an  oath.  The  declarations,  therefore,  of  a  per- 
son dying  under  such  circumstances,  are  considered  as  equivalent  to 
the  evidence  of  the  living  witness  upon  oath."  See,  also,  Scott  v. 
People,  G3  111.  508,  510;    Hill  v.  State,  41  Ga.  484,  503. 


§  194)  REAL   EXCEPTIONS   TO    GENERAL   RULE.  32t 


SAME— EXPECTATION   OF  IMMEDIATE  DEATH. 

194.  In  the  nse  of  this  sort  of  evidence,  the  condition  is  im- 
perative that  declarations  be  made  in  contemplation 
of  immediate  death,  and,  if  it  be  sho^vn  that  the  de- 
ceased had  any  hopes  of  recovery,  the  declarations  are 
not   alloived. 

As  the  condition  upon  which  the  rehability  of  the  statements 
depends  is  the  expectation  of  immediate  death,  the  courts  are 
strict  in  seeing  that  it  is  always  present  at  the  precise  time  of 
the  making  of  the  statements. ^^^  If  the  expectation  is  present, 
the  condition  is  satisfied.  It  is  not  necessary  that  the  expecta- 
tion be  realized  in  the  actual  occurrence  of  death  at  the  time. 
Death  must  occur  at  some  time,  but  it  may  be  delayed  for  days, 
or  even  weeks,  and  still  not  take  away  from  the  statements  their 
character  as  dying  declarations. -"^  Following  the  same  prin- 
ciple, it  is  held  that  statements  made  immediately  prior  to  the 
occurrence  of  death,  though  in  fact  dying  declarations  in  the 
literal  sense,  are  not  within  the  class  of  dying  declarations  ad- 
mitted in  evidence  if  the  person  did  not  know  that  he  was  about 
to  die  when  he  made  the  statements.^"^ 

199  Ck)m.  V.  Roberts,  108  Mass.  296;  Morgan  v.  State,  31  Ind.  193; 
Bull  V.  Com.,  14  Grat.  (Va.)  613,  620;  State  v.  Simon,  50  Mo.  370; 
Lewis  V.  State,  9  Smedes  &  M.  (Miss.)  115 ;  People  v.  Taylor,  59  Cal. 
640,  646.  See,  also,  dissenting  opinion  of  Judge  Harrington,  State 
V.  Cornish,  5  Har.   (Del.)  502. 

200  People  V.  Grunzig,  1  Parker,  Cr.  R.  (N.  Y.)  299;  State  v.  Cor- 
nish, 5  Har.  (Del.)  502 ;  Hall  v.  Com.,  89  Va.  171.  175,  15  S.  E.  517 ; 
Baxter  v.  State,  15  Lea  (Tenn.)  657 ;  State  v.  Wilson,  121  Mo.  434, 
442,  26  S.  W.  357 ;  State  v.  Daniel,  31  La.  Ann.  91.  In  Com.  v.  Ha- 
ney,  127  ]\Iass.  455,  on  the  trial  of  X.  for  manslaughter,  the  decla- 
rations of  the  deceased,  made  four  days  before  his  death,  were  held 
admissible.  Ames,  J.,  refers  to  Com.  v.  Cooper,  5  Allen  (Mass.)  495, 
81  Am.  Dec.  762,  and  Com.  v.  Roberts,  108  Mass.  296,  where  death 
did  not  occur  until  about  17  days  after.  He  says:  "The  rule  as  to 
the  admissibilitj'  of  dying  declarations  does,  not  require  that  they 
should  have  been  made  while  the  sufferer  is  literally  breathing  his 
last.  It  is  enough  that  they  were  made  when  he  understands  that 
his  injuries  are  fatal  and  believes  his  death  to  be  near  at  hand.  If 
he  believed  himself  to  be  In  a  dying  state,  it  is  immaterial  that  he 
lived  four  days  after  making  the  declarations." 

201  People  V.  Perry,  8  Abb.  Prac.  (N.  S.  N.  Y.)  27;    Peak  v.  State, 


326  HEARSAY.  (Ch.  11 


SAME— IN   AVHAT   CASES   ADMISSIBLE. 

195.    Dying  declarations  are  admissible  only  in  cases  of  hom- 
icide. 

It  is  rather  an  arbitrary  rule  which  confines  the  use  of  dying 
declarations  to  cases  of  trials  for  homicide.  The  rule,  never- 
theless, exists,  and  is  strictly  enforced. ^''^  If  the  sole  reason 
for  admissibility  lies  in  the  reliability  resting  on  the  solemnizing 
influence  of  approaching  death,  there  would  seem  to  be  no  rea- 
son why  the  declarations,  if  material,  should  not  be  used  in 
civil  as  well  as  criminal  cases.  Some  of  the  earlier  text-writers 
so  interpreted  the  rule,-°^  but  the  courts  were  not  disposed  to 
be  so  liberal,  and  when  the  question  arose  drew  the  line  very 
strictly  as  to  the  use  of  evidence  of  this  kind,  and  laid  it  down 
that  it  was  receivable  in  criminal  cases  only,  and  of  such  cases 
only  in  those  where  homicide  was  charged.^"*    In  one  civil  case, 

50  N.  J.  Law,  179,  183,  12  Atl.  701.  In  People  v.  Hodgdon,  55  Cal. 
72,  36  Am.  Rep.  30,  the  statement  offered  as  a  dying  declaration  was 
a  writing  which  began:  "Dying  statement  of  Mrs.  Emma  Downs: 
Believing  I  am  very  near  death,  and  realizing  that  I  may  not  re- 
cover, I  wish  to  make  this,  my  dying  statement,  as  to  the  cause  of 
tny  death,"  etc.  It  was  held  that  this,  on  its  face,  showed  there  was 
.still  a  slight  hope  of  recovery,  and  did  not  satisfy  the  requirements, 
though  in  fact  the  woman  died  within  an  hour  after  making  it. 

202  Waldele  v.  Railroad  Co.,  19  Hun  (N.  Y.)  69;  Johnson  v.  State, 
50  Ala.  456;    West  v.  State,  7  Tex.  App.  150. 

203  Phil.  Ev.  (1st  Am.  Ed.)  p.  201;  Starkie,  Ev.  (7th  Am.  Ed.)  p. 
22.  In  Wright  v.  Littler,  3  Burrows,  1244,  the  facts  were  as  fol- 
lows:  A.  brought  an  action  against  X.  in  ejectment.  A.  claimed 
under  a  will  of  M.  X.  claimed  under  a  subsequent  instrument,  al- 
leged to  be  a  will.  The  latter  was  wholly  in  the  handwriting  of  S., 
who  was  a  witness  to  it,  and  whose  wife  was  the  principal  benefi- 
ciary, and  both  wills  were  long  in  the  possession  of  S.,  who,  during 
his  last  illness  and  about  three  weeks  before  his  death,  pulled  the 
first  will  out  of  his  bosom,  and  gave  it  to  B.,  and  said  it  was  the 
true  will  of  M.,  and  that  the  subsequent  will  he  had  himself  forged. 
Lord  Mansfield  held  the  declaration  admissible. 

204  Wilson  V.  Boerem  (1818)  15  Johns,  (N.  Y.)  286.  This  was  a 
case  where  A.  sued  X.  on  a  promissory  note  drawn  by  B.,  payable 
to  X.,  by  him  indorsed  to  C,  and  by  C.  indorsed  to  A.  The  decla- 
ration of  C,  made  about  a  week  before  his  death,  while  he  was  suf- 
fering from  consumption,  and  knew  he  could  not  live  long,  was  of- 


§  196)      REAL  EXCEPTIONS  TO  GENERAL  RULE.         327 

where  a  deed  had  been  proved  by  proving  the  handwriting  o{ 
a  deceased  subscribing  witness,  it  was  very  strongly  urged  that 
certain  deathbed  utterances  of  the  witness,  to  the  effect  that  the 
deed  was  a  forgery,  should  be  admitted.  It  was  claimed  that 
it  would  be  equivalent  to  giving  the  party  the  benefit  of  cross- 
examination  of  the  subscribing  witness.  The  court,  however, 
refused  to  admit  the  evidence.-^^  As  a  matter  of  fact,  the  early 
cases  where  declarations  of  this  sort  were  offered  were  cases 
involving  charges  of  homicide,  and  from  the  doctrine  of  admis- 
sibility adopted  in  these  cases  arose  the  idea  that  it  was  a  gen- 
eral doctrine  applying  to  all  cases ;  but,  when  the  question  was 
actually  raised  as  to  their  admissibility  in  civil  cases,  the  court, 
not  finding  any  actual  precedent,  declined  to  extend  the  doc- 
trine.^"® How  strictly  the  rule  confining  the  admission  of  such 
declarations  to  cases  of  homicide  is  held  to  is  illustrated  by 
those  cases  where,  though  death  resulted  from  the  crime 
charged,  the  crime  itself  is  not  technically  homicide.  Here  dy- 
ing declarations  are  not  admitted.^**'' 


BY    AVHOM    MUST    HAVE    BEEN    MADE. 

196.    Only  declarations  made  by  the  person  ^xrliose  death  is  in 
issue  on  the  trial  are  admissible. 

fered  to  show  that  the  note  was  made  by  B.,  and  indorsed  by  X.  for 
the  accommodation  of  C,  and  that  C.  gave  it  to  A.  to  discount,  but 
never  received  anything  for  it,  but  A.  pledged  it  to  S.  for  a  debt. 
The  court  refused  to  apply  the  rule  of  civil  cases,  and  held  the  ev- 
idence was  inadmissible.  To  the  same  effect  are  Daily  v.  Railroad 
Co.,  32  Conn.  356,  87  Am.  Dec.  176 ;  Marshall  v.  Railway  Co.,  48  111. 
475,  95  Am.  Dec.  561. 

20  5  Stobart  v.  Dryden  (1836)  1  Mees.  ^S:  W.  615.  A.  sued  X.  on  a 
covenant  contained  in  a  deed.  The  subscribing  witness,  M.,  being 
dead,  the  execution  was  proved  by  proving  his  handwriting.  Evi- 
dence was  then  offered  of  declarations  of  M.  tending  to  prove  the 
deed  a  forgery.  Is  it  admissible?  Parke,  B.,  holds  that  such  dec- 
larations are  neither  admissible  as  tending  to  disprove  the  execution 
on  the  theory  that  declarations  of  the  same  witness  was  used  to 
prove  the  execution,  nor  on  the  theory  that  it  was  in  the  nature  of 
cross-examination. 

20  6  stobart  v.  Dryden,  1  Mees.  &  W.  614. 

207  Railing  v.  Com.,  110  Pa.  100,  106,  1  Atl.  314;  State  v.  Harper, 
35  Ohio  St  78,  35  Am.  Rep.  596.     See  State  v.  Meyer,  65  N.  J.  Law, 


328  HEARSAY.  (Ch.  n 

Another  restriction  on  the  use  of  dying  declarations  is  that 
they  are  receivable  only  when,  upon  the  trial  for  homicide,  the 
death  of  the  party  making  them  is  the  subject  of  the  charge.-''^ 
If  the  death  of  X.  be  the  homicide  charged,  and  the  dying  dec- 
larations of  Y.  are  offered,  they  will  not  be  received.  But  this 
is  not  carried  to  the  extent  of  shutting  out  the  declarations  of 
a  person  killed  by  the  same  act  or  as  the  result  of  the  same 
transaction  which  caused  the  death  of  the  person  whose  homi- 
cide is  the  subject  of  the  trial.^^^ 


237,  47  Atl.  487,  86  Am.  St.  Rep.  634.  Here  the  dying  declarations 
of  a  woman  were  admitted  upon  the  trial  of  an  indictment  against 
the  defendant  for  attempted  abortion.  In  Massachusetts  and  New 
York,  in  cases  of  this  character,  dying  declarations  are  admitted 
under  statutoiy  provisions.  Pub.  St.  Mass,  1882,  c.  207,  §  9;  Laws 
N.  Y.  1875,  p.  337,  c.  352. 

2  08  In  Rex  V.  Mead  (1824)  2  Barn.  &  C.  605,  X.  was  tried  and  con- 
victed for  perjury  in  having  sworn  on  a  criminal  trial  that  L.  had 
been  present  and  engaged  in  a  smuggling  transaction.  On  a  motion 
for  a  new  trial,  the  dying  declaration  of  L.,  who  was  shot  by  X. 
after  his  conviction,  was  offered.  This  declaration,  besides  detailing 
the  circumstances  of  the  shooting,  included  statements  that  he  had 
not  been  present  in  the  smuggling  transaction.  Abbott,  C.  J.,  says : 
"Here  the  dying  declaration  of  Law  was  for  the  purpose,  not  of  ac- 
cusing, but  of  clearing,  himself.  It  therefore  falls,  not  within  the 
exception  on  which  those  decisions  proceeded,  but  within  the  gen- 
eral rule  that  evidence  of  this  description  is  only  admissible  where 
the  death  of  the  deceased  is  the  subject  of  the  charge,  and  the  circum- 
stances of  the  death  the  subject  of  the  dying  declaration."  In  Peo- 
ple V.  Davis  (1874)  56  N.  Y.  95,  on  the  trial  of  X.  for  procuring  abor- 
tion on  A.,  who  died  from  the  effects  of  the  operation,  the  declaration 
of  A.  was  offered  and  received  on  the  trial.  On  appeal  the  court 
said :  "The  court  also  erred  in  receiving  proof  of  the  declarations  of 
the  deceased  made  after  she  had  abandoned  all  hopes  of  life.  Such 
evidence  is  admissible,  in  cases  of  homicide,  only  where  the  death  of 
the  deceased  is  the  subject  of  the  charge,  and  the  circumstances  of 
the  death  are  the  subject  of  the  dying  declarations." 

200  Rex  V.  Baker  (1837)  2  Moody  &  R.  53.  On  the  trial  of  X.  for 
poisoning  A.,  the  dying  declaration  of  M.,  a  servant,  who,  after  A.  had 
eaten  a  portion  of  the  poisoned  cake,  and  became  sick,  said  she  was 
not  afraid  of  it,  and  ate  the  remainder,  and  died,  as  to  the  manner 
in  which  she  had  made  the  cake,  that  she  had  put  nothing  bad  in  it, 
and  that  X.  was  present  at  one  end  of  the  table  while  she  was  making 
it,  was  offered.  It  was  held  that  although  the  death  of  M.  was  not  the 
subject  of  inquiry,  as  it  was  all  a  part  of  one  transaction,  the  dec- 
larations were  admissible. 


§§  197-198)       REAL   EXCEPTIONS   TO    GENERAL   RULE.  329 


TO    WHAT   DECLARATIONS    MUST    RELATE. 

197.  Declarations  made  in  contemplation  of  death  are  admis» 
sible  only  -when  they  relate  to  the  cause  of  death  or  the 
circumstances  attending  the  transaction  resulting  in 
death. 

The  declarations  must  relate  to  facts  directly  connected  with 
the  transaction  resulting  in  death.  Declarations  as  to  other 
facts  prior  or  subsequent  are  inadmissible, -^°  as  well  as  dec- 
larations which  state  matters  of  opinion. -^^  The  declarations 
need  not  be  an  account  of  all  the  facts  connected  with  the 
cause  of  death.  If  the  statement  is  complete,  in  the  sense  that 
it  comprises  all  the  deceased  intended  to  say,  it  is  admissible.^ ^- 

Where  the  declaration  relates  in  part  only  to  the  killing,  and 
yet  is  of  such  a  nature  as  to  be  not  sufficiently  intelligible,  if 
separated,  the  entire  declaration  may  properly  be  admitted ;  but 
in  such  case  the  jury  should  be  instructed  as  to  the  proper  use 
of  the  declaration  as  evidence.^^^ 


SAME— COMPETENCY. 

198.  Dying  declai'ations  are  not  admissible  if  from  persons 
ivho  \irould  be  incompetent  as  ivitnesses  if  living  and 
present  in  court. 

210  Hackett  v.  People,  54  Barb.  (N.  Y.)  370;  State  v.  Wood,  53  Vt. 
560,  563 ;  Jones  v.  State,  71  Ind.  66,  76 ;  State  v.  Slielton,  47  N,  C.  360, 
&4  Am.  Dec.  587.  In  State  v.  Wood,  supra,  the  following  declaration 
was  held  inadmissible:  "Yes;  my  wife  has  threatened  a  hundred 
times  to  kill  me  before.  She  threatened  to  kill  me  before  she  went 
away  the  last  time."  In  Burroughs  v.  U.  S.  (Ind.  T.)  90  S.  W.  8, 
the  deceased's  declaration  that  he  had  not  thrown  anything  at  the 
train,  nor  incited  anybody  to  do  so,  was  held  admissible,  where,  on 
a  prosecution  of  the  brakeman  for  murder,  the  defense  was  that  he 
was  struck  by  a  stone  and  that  he  had  shot,  without  seeing  any  one 
and  for  the  purpose  of  scaring  the  person  who  had  thrown  the  stone. 

211  People  V.  Shaw,  63  N.  Y.  36,  40;  State  v.  Williams,  67  N.  C. 
12 ;  Wroe  v.  State,  20  Ohio  St.  460 :  Jones  v.  State,  52  Ark.  345,  12  S. 
W.  704:  People  v.  Taylor,  59  Cal.  040,  645. 

212  State  V.  Patterson,  45  Yt.  308.  313,  12  Am.  Rep.  200. 

213  State  V.  Carter,  107  La.  792,  32  South.  183. 


330  HEARSAY.  (Ch.  11 

If  for  any  reason  the  deceased  person  would,  if  living,  be  in- 
competent as  a  witness,  his  dying  declarations  are  inadmissible. 
This  has  been  held  in  the  case  of  a  convict,  an  atheist,  and  in 
the  case  of  very  young  children.^^*  In  the  case  of  husband  and 
wife,  it  is  held  that  the  dying  declarations  of  one  are  admissible 
against  the  other  under  the  same  circumstances  and  for  the 
same  purposes  that  the  testimony  of  one  would  be  admissible 
against  the  other.  The  testimony  of  the  wife,  if  living,  would 
be  good  against  the  husband  on  a  trial  for  a  crime  of  violence 
against  her  person ;  hence  her  dying  declarations,  where  her 
death  is  the  subject  of  the  charge  against  the  husband,  are  ad- 
missible.^^^  The  declarations  are  equally  admissible  whether 
offered  on  behalf  of  the  prosecution  or  the  accused.^^® 


SAME— FORM   OF  DECLARATION   IMMATERIAIj. 

199.  The  admissibility  of  dying  declarations  is  not  dependent 
on  their  being  made  in  any  particular  form.  They  may 
be  oral  or  w?ritten,  verified  or  unverified.  There  are 
no  formalities  to  be  observed. 

The  form  of  the  declaration,  or  the  manner  in  which  it  is  ob- 
tained, is  immaterial,  if  it  satisfies  the  other  requirements  of  the 
rule.    It  may  have  been  an  oral  statement  or  ejaculation  made 

211  The  court  said  in  Rex  v.  Drummond,  Leach  (4th  Ed.)  337,  where 
it  was  sought  to  give  in  evidence  tlie  declarations  of  a  convict  made 
immediately  prior  to  his  execution:  "But  to  examine  a  witness  to 
the  declarations  of  an  attainted  convict  would  be  carrying  the  rule  of 
evidence  beyond  its  possible  extent,  even  if  the  person  were  alive ; 
for  as  an  attainted  convict  he  could  not  have  been  admitted  to  give 
testimony  upon  oath,  and  the  dying  declarations  of  such  a  person 
cannot,  consistently  with  the  principles  of  justice,  be  considered  as 
better  evidence  than  his  testimony  on  oath  would  have  been  if  he  had 
been  alive."  See,  also,  statement  of  Eyre,  C.  B.,  in  "Woodcock's  Case, 
Leach  (4th  Ed.)  500.  Rex  v.  Pike,  3  Car.  &  P.  598;  Reg.  v.  Perkins, 
9  Car.  &  P.  395. 

215  People  V.  Green,  1  Denio  (N.  Y.)  G14 ;  Moore  v.  State,  12  Ala. 
764,  4G  Am.  Dec.  27G. 

216  In  Moore  v.  State,  12  Ala.  764,  46  Am.  Dec.  276,  A.  was  on  trial 
for  the  murder  of  her  husband.  X.  Declarations  by  X.,  four  days 
before  his  death,  that  A.  had  inflicted  the  wounds  which  subsequently 
caused  his  death,   are  admissible;   so,  also,  are  declarations,  made 


§  200)  REAL   EXCEPTIONS   TO    GENERAL   RULE.  331 

to  a  casual  bystander,-^ ^  a  mere  formal  statement  to  a  phy- 
sician, relative,  or  friend,-^*  or  answers  to  questions  put  by 
such  person,^^^  a  writing  signed  by  the  declarant,""  or  an  af- 
fidavit.-^^ It  may  even  be  a  communication  by  means  of 
signs.-"  Where  it  is  a  written  declaration,  and  the  writing 
has  been  lost,  oral  evidence  of  what  the  writing  contained  will 
be  received. -^^  In  ordinary  cases  of  a  written  declaration,  the 
writing  must  be  authenticated  and  proved  as  any  document  of- 
fered in  evidence.--*  Where  both  written  and  oral  declarations 
have  been  made,  both  may  be  proved. 


226 


SAME— COURT    TO    DETERMINE    ADMISSIBILITY. 

200.    The   question  whether   the   deceased   had   am  expectation 
of  immediate  death  is  for  the  court  to  determine. 

This  is  a  preliminary  question  of  fact,  relating  to  the  ad- 
missibility of  the  evidence,  and  must  be  passed  upon  by  the 
court.^^^  It  is  sometimes  difficult  to  determine  whether  the  de- 
several  days  later,  that  A.  "did  not  do  it."  The  jury  must  weigh  both 
declarations  together,  and  determine  which  is  entitled  to  credence. 
See,  also,  State  v.  Saunders,  14  Or.  300,  304,  12  Pac.  441. 

217  state  V.  Arnold,  35  N.  C.  184;  Mockabee  v.  Com.,  78  Ky.  380. 

218  State  V.  Gray,  55  Kan.  135,  39  Pac.  1050. 

219  State  V.  Patterson,  45  Vt.  308,  12  Am.  Rep.  200. 

220  State  V.  Kindle,  47  Ohio  St.  358,  24  N.  E.  485. 
22iKilgore  v.  State,  74  Ala.  1. 

222  Com.  V.  Casey,  11  Cush.  (Mass.)  417,  59  Am.  Dec.  150. 

223  State  V.  Tweedy,  11  Iowa,  350. 

224  Com.  V.  Casey.  11  Cush.  (Mass.)  417,  421,  59  Am.  Dec.  150;  State 
V.  Kindle,  47  Ohio  St.  358,  24  N.  E.  485 ;  State  v.  Cameron,  2  Chand. 
(Wis.)  172 ;  King  v.  State,  91  Tenn.  617,  650,  20  S.  W.  169 ;  Drake  x. 
State,  25  Tex.  App.  293.  312,  7  S.  W.  868. 

225  People  V.  Vernon.  35  Cal.  49,  95  Am.  Dec.  49;  Collier  v.  State, 
20  Ark.  36.  In  Wilson  v.  Com.,  60  S.  W.  400,  22  Ky.  Law  Rep.  1251, 
the  peculiar  case  arose  of  a  written  declaration  made  before  the 
deceased  had  lost  hope,  which  written  declaration  was  subsequently 
declared  to  be  true  by  deceased,  after  she  had  lost  hope.  Both  writ- 
ten and  oral  declarations  were  quite  properly  held  admissible. 

2  26  People  V.  Smith,  104  N.  Y.  491,  504,  10  N.  E.  873,  58  Am.  Rep. 
537 ;  Com.  v.  Bishop,  165  Mass.  148.  42  N.  E.  560 ;  Donnelly  v.  State, 
26  N.  J.  Law,  463,  503 ;  State  v.  Banister.  35  S.  C.  290,  14  S.  E.  678 ; 
State  V.  Simon,  50  INIo.  370 ;  State  v.  Elliott,  45  Iowa,  486 ;  Dixon  v. 


332  HEARSAY.  (Ch.  11 

ceased  realized  that  death  was  about  to  take  place,  though 
death  in  fact  followed  closely  upon  the  making  of  the  state- 
ment. It  has  been  held  that  the  actual  existence  of  a  dying  con- 
dition, resulting  from  some  violent  cause,  such  as  a  mortal 
wound,  is  sufficient  to  justify  the  inference  that  the  deceased 
was  impressed  by  the  approach  of  death,"^  but  the  matter 
seems  to  be  in  some  uncertainty."-^  It  is  not  necessary  that 
the  deceased  express  by  words  his  knowledge  or  belief  that 
death  is  imminent.  If  it  appear,  from  the  circumstances  which 
surround  his  making  of  the  statement,  including  what  was  said 
by  others  in  his  presence,  that  he  supposed  he  was  dying,  it  is 


State.  13  Fla.  636,  640.    Contra,  Bush  v.  State,  109  Ga.  120,  34  S.  E. 
298. 

2  27  Woodcock's  Case,  Leach  (4th  Ed.)  500.  X.  was  on  trial  for 
the  murder  of  his  wife,  A.  A.  was  found  in  a  ditch,  badly  bruised, 
and  thought  to  be  dead,  but  was  revived,  regained  consciousness,  and 
before  a  magistrate,  who  administered  an  oath,  made  and  signed  a 
statement  which  was  strongly  against  the  prisoner.  A.  died  within 
48  hours  after.  It  did  not  appear  that  A.  expressed  any  apprehension 
or  seemed  sensible  of  approaching  death.  Eyre,  C.  B.,  says:  "But 
a  difficulty  also  arises  with  respect  to  these  declarations ;  for  it  has 
not  appeared,  and  it  seems  impossible  to  find  out,  whether  the  de- 
ceased herself  apprehended  that  she  was  in  such  a  state  of  mortality 
as  would  inevitably  oblige  her  to  soon  answer  before  her  Maker  for 
the  truth  or  falsehood  of  her  assertions.  *  *  *  Upon  the  whole 
of  this  difficulty,  however,  my  judgment  is  that  inasmuch  as  she  was 
mortally  wounded,  and  was  in  a  condition  which  rendered  almost  im- 
mediate death  inevitable ;  as  she  was  thought  by  every  person  about 
her  to  be  dying,  though  it  was  difficult  to  get  from  her  particular  ex- 
planations as  to  what  she  thought  of  herself  and  her  situation, — ^her 
declarations,  made  under  these  circumstances,  ought  to  be  considered 
by  a  jury  as  being  made  under  the  impression  of  approaching  disso- 
lution." 

228  Reg.  V.  Morgan  (1875)  14  Cox,  Cr.  Cas.  337.  In  this  case,  Reg. 
V.  Cleary,  2  Fost.  &  F.  853,  is  referred  to  as  an  authority  that  it  can- 
not be  inferred  from  the  nature  of  the  wound  itself  that  the  person 
knew  he  was  about  to  die.  The  facts  were  as  follows :  On  the  trial 
of  X.  for  murder  of  A.,  it  appeared  that  A.  and  X.  were  in  a  tent 
together ;  that  A.  came  running  out  with  his  throat  cut,  so  that  he 
could  not  speak ;  that  he  wrote  something  on  a  paper,  and  died  in  10 
minutes  after.  Was  the  writing  admissible  as  a  dying  declaration? 
Denraan  and  Cockburn,  after  consideration,  said  that  they  would  not 
"like  to  say  that  the  statement  was  not  admissible,  but  could  not  ad- 
mit it  without  reserving  a  case  for  the  court  for  C.  C.  R.     The  pros- 


§  201)  REAL    EXCEPTIONS   TO   GENERAL   RULE.  333 

sufficient.229  j^  ^he  determination  of  the  question  of  admis- 
sibility, evidence  as  to  the  state  of  mind  of  deceased  at  the  time 
he  made  the  declaration  is  received  from  the  defense  as  well  as 
prosecution,  and  on  such  evidence  the  court  determines  the  ad- 
missibility of  the  declaration,-^" 

MATTERS  OF  PUBLIC  OR  GENERAIi  INTEREST— GENERAL 

RULE. 

201.  Matters  of  public  or  general  interest  may  be  proved  by 
hearsay  evidence,  consisting  either  of  declarations  of 
deceased  persons  or  of  general  reputation. 

The  dangers  arising  from  the  use  of  hearsay  testimony  are 
almost  entirely  absent  where  public  or  general  matters  are 
concerned.  The  very  fact  that  they  are  public — that  many 
people  are  or  can  be  informed  in  reference  to  them — is  suffi- 
cient to  justify  the  admission  of  hearsay.  Matters  of  this 
sort  approach  in  their  nature  those  facts  of  which  the  courts 
take  judicial  notice,  and  have  somewhat  the  same  character 
with  regard  to  the  necessity  of  the  usual  formalities  of  proof. 
Concerning  what  is  of  public  interest  no  one  is  likely  to  fal- 
sify, for  the  reason  that  the  public  nature  of  the  matter  makes 
false  statements  too  likely  to  be  found  out.^^^    The  exception 

ecution  proceeded  without  the  statement."    There  was,  therefore,  no 
decision  of  the  point 

229  Kilpatrick  v.  Com.,  31  Pa.  198;  Hill  v.  State,  41  Ga.  484-,  People 
V.  Simpson,  48  Mich.  474,  12  N.  W.  662 ;  Miller  v.  State,  27  Tex.  App. 
63,  10  S.  W.  445;  Dunn  v.  State,  2  Pike  (Ark.)  229,  35  Am.  Dec.  54; 
People  V.  Gray,  61  Cal.  164,  175,  44  Am.  Rep.  549.  The  fact  of  the 
administration  of  the  last  rites  of  the  church  by  a  priest  has  been 
held  to  be  proper  to  prove  a  knowledge  of  impending  death.  State  v. 
Swift,  57  Conn.  496,  505.  18  Atl.  664. 

230  state  V.  Elliott  45  Iowa,  486,  488. 

231  Reg.  V.  Inhabitants  of  Bedfordshire,  4  El.  &  Bl.  535.  In  this 
case  Lord  Campbell,  C.  J.,  says,  concerning  the  principles  governing 
the  admission  of  this  class  of  declarations:  "The  admissibility  of 
<leclarations  of  deceased  persons  in  such  cases  is  sanctioned  because 
these  rights  and  liabilities  are  generally  of  ancient  and  obscure  origin, 
and  may  be  acted  upon  only  at  distant  intervalsi  of  time;  because 
direct  proof  of  their  existence,  therefore,  ought  not  to  be  required; 
because,  in  local  matters,  in  which  the  community  are  interested,  all 


334  HEARSAT.  (Ch.  11 

to  the  hearsay  rule  admitting  declarations  of  this  sort  is  well 
established  both  in  this  country  and  in  England. ^^^ 

The  subject  of  proof  by  declarations  of  this  sort  must  be 
the  public  matter  itself,  and  not  some  particular  fact  which  is 
evidence  of  the  public  matter.  Thus,  if  the  question  be  as 
to  the  location  of  a  public  boundary,  declarations  and  repu- 
tation would  be  admissible  to  show  that  the  boundary  was  at 
a  certain  place,  but  would  not  be  admissible  to  show  that  a 
certain  surveyor  in  making  a  survey  had  located  a  corner  at 
a  particular  place.^^* 


SAME— DISTINCTION  BETWEEN   PUBLIC   INTEREST   AND 

GENERAL    INTEREST. 

202.  A  right  or  custom  is  public  if  it  is   cominon  to  an  en- 

tire people,  ivhile  it  is  general  if  it  is  common  to  a 
single  community,  or  to  a  considerable  number  of 
persons  forming  a  party  of  the   community. 

203.  Declarations  as  to  public  matters,  by  xi^Iiomsoever  made» 

are  admissible. 

204.  Declarations   as   to   general   matters   are    admitted   only 

Tvhen  means  of  knovpledge  on  the  part  of  the  person 
making   them   is    shovra. 

Some  difficulty  is  met  with  in  determining  what  matters 
are  of  public  or  general  interest.     The  definition  given  above 

persons  living  in  the  neigtiborhood  are  likely  to  be  conversant;  be- 
cause, common  riglits  and  liabilities  being  naturally  talked  of  in 
public,  what  is  dropped  in  conversation  respecting  them  may  be  pre- 
sumed to  be  true;  because  conflicting  interests  would  lead  to  con- 
tradiction from  others  if  the  statements  were  false ;  and  thus  a  trust- 
worthy reputation  may  arise  from  the  concurrence  of  many  parties 
micounected  with  each  other,  who  are  all  interested  in  investigating 
the  subject." 

232  Druiy  V.  Railroad  Co.,  127  Mass.  571,  581;  Borough  of  Birming- 
ham V.  Anderson,  40  Pa.  506,  514;  People  v.  Velarde,  59  Cal.  457; 
McCall  V.  U.  S.,  1  Dak.  320,  46  N.  W.  608 ;  Cox  v.  State,  41  Tex.  1 ; 
Weeks  v.  Sparke,  1  Maule  &  S.  679 ;  Reed  v.  Jackson,  1  East,  355. 

23  3  Ellicott  V.  Pearl,  10  Pet.  (U.  S.)  412,  437,  9  L.  Ed.  475,  Judge 
Story  in  this  case  says  that  to  render  evidence  of  this  sort  admis- 
sible, "three  things  must  generally  concur:  First,  that  the  fact  to 
which  the  reputation  or  tradition  applies  must  be  of  a  public  na- 
ture;  secondly,   if   the   reputation   or   ti-adition  relate  to   the  exer- 


§§  202-204)   REAL  EXCEPTIONS  TO  GENERAL  RULE.      335 

is  that  usually  accepted. ^^*  In  the  application  of  the  rule, 
however,  much  must  depend  upon  the  facts  of  each  particular 
case. 

Questions  of  public  boundaries  are  the  most  common  in- 
stances which  arise  under  the  rule,  as  matters  of  public  in- 
terest. By  public  boundaries  are  meant  boundaries  between 
different  political  divisions  of  a  country,  or  boundaries  of  the 
country  itself.  Questions  of  public  rights  of  way  or  pre- 
scriptive rights  are  of  the  same  class. ^^^  In  one  case  the 
question  arose  as  to  the  obligation  of  a  certain  landowner 
to  repair  a  bridge  on  the  highway,  and  it  was  held  ^o  involve 
a  question  of  public,  or,  at  all  events,  general,  interest,  upon 
which  evidence  of  reputation  was  admissible. ^^® 

The  question  whether  certain  persons  named  as  trustees 
of  a  city  in  a  deed  were  the  legal  trustees  has  been  held  to 
be  a  matter  of  public  interest,  and  evidence  that  they  were 
commonly  reputed  to  be  the  trustees  held  admissible. ^^'^  A 
question  of  the  incorporation  of  a  parish  is  of  the  same  char- 

cise  of  a  right  or  privilege,  it  must  be  supported  by  acts  of  en- 
joyment or  privilege  within  the  period  of  living  memory ;  thirdly, 
that  it  must  not  be  reputation  or  traditionary  declarations  to  a  par- 
ticular fact."  See,  to  same  effect,  Southwest  School  Dist.  of  Bolton 
V.  Williams,  48  Conn.  504;  Hall  v.  Mayo,  97  Mass.  416;  Dawson  v. 
Town  of  Orange,  78  Conn.  96,  61  Atl.  101. 

234  Steph.  Dig.  Ev.  art.  30 ;  1  Greenl.  Ev.  (15th  Ed.)  §  128. 

235  In  Diiiry  v.  Railroad  Co.,  127  Mass.  571,  the  question  was  as 
to  the  location  of  a  creek  or  arm  of  the  sea  which  had  been  filled  up. 

236  Reg.  V.  Inhabitants  of  Bedfordshire,  4  El.  &  Bl.  535.  In  this 
case  evidence  was  offered  of  a  statement  of  a  person  who  had  worked 
on  the  bridge,  to  the  efCect  that  he  had  worked  for  the  private  person 
charged  with  the  repair  of  the  bridge.  In  one  aspect  the  question  was 
certainly  one  of  public  interest,  as,  if  it  were  held  that  the  private  per- 
son was  not  responsible  for  the  repair,  necessarily  the  expense  would 
fall  upon  the  entire  parish.  It  was  held  accordingly  in  this  case  that 
the  statement  referred  to  was  admissible  in  its  negative  aspect.  Where 
the  question  was  as  to  which  of  two  towns  should  be  charged  with  the 
support  of  a  pauper,  and  it  appeared  that  the  house  of  the  pauper's 
grandfather  stood  on  the  boundary  line  between  the  two  towns,  it  be- 
came important  to  show  exactly  how  it  stood.  Here  was  a  ques- 
tion where  the  boundary  line  was  not  in  question,  but  the  situation  of 
the  house  with  respect  to  the  boundary  line.  It  was  held  that  the 
question  was  one  of  general  interest.    Hall  v.  Mayo,  97  Mass.  418. 

23  7  City  of  Monterey  T.  Jacks,  139  Gal.  542,  73  Pac.  436. 


336  HEARSAY.  (Ch.  11 

acter.^'®  The  admissibility  of  hearsay  respecting  these  mat- 
ters has  never  been  questioned. ^^®  It  is  when  we  approach 
questions  of  private  or  semi-private  boundaries  that  we  find 
more  uncertainty  in  the  cases.  PubHc  boundaries  are  matters 
of  public  interest.  Private  boundaries  may  or  may  not  be 
matters  of  general  interest.  In  England  the  questions  of  manor 
boundaries  and  manor  rights  arose  frequently,  and  it  was 
held  that  they  were  matters  of  general  interest  where  they 
affected  all  the  tenants  of  a  manor.  Hearsay  was  accordingly 
allowed.  The  English  courts  declined  to  extend  the  doctrine 
further  and  include  questions  of  private  boundary.^*"  In 
America  there  were  no  manors,  but  there  was  the  ownership 
of  large  tracts,  and  the  division  and  subdivision  of  them  until 
a  single  original  boundary  became  of  common  interest  to  many 
people.  Under  these  circumstances,  the  courts  showed  an  in- 
clination to  extend  the  exception  to  questions  of  private  bound- 
ary, and  in  many  of  the  states  it  has  been  so  extended.^*^ 


238  Dillingham  v.  Snow,  5  Mass.  547. 

23  9Ttiayer,  Cas.  Ev.  (2d  Ed.)  p.  418,  note. 

240  Doe  V.  Thomas,  14  East  323,  and  note,  p.  327.  See,  also,  Earl 
of  Dunraven  v.  Llewellyn,  15  Q.  B.  791.  809. 

241  Holmes  v.  Turner's  Falls  Co.,  1.50  Mass.  535,  544,  23  N.  E.  305,  6 
L.  R.  A.  283;  Royal  v.  Chandler,  83  :Me.  150,  21  Atl.  842;  Smith  v. 
Forrest,  49  N.  H.  230;  Lawrence  v.  Tennant,  64  N.  H.  532,  15  Atl. 
543 ;  Child  v.  Kingsbury,  46  Vt.  47,  54 ;  Kinney  v.  Farnsworth,  17 
Conn.  355;  ^IcCausland  v.  Fleming.  63  Pa.  36;  Fry  v.  Stowers.  92 
Va.  13.  22  S.  E.  500 ;  Scoggln  v.  Dalrymple,  52  N.  C  46 ;  Smith  v.  No- 
wells,  2  Litt.  (Ky.)  159;  dark  v.  Hills.  67  Tex.  141,  1.52,  2  S.  W.  356; 
Morton  v.  Folger.  15  Gal.  275.  See,  also.  Curtis  v.  Aaronson,  49  N.  .T. 
Law,  68,  7  Atl.  8S6.  60  Am.  Rep.  584 ;  Detweiler  v.  City  of  Toledo,  13 
Ohio  Cir.  Ct.  R.  572.  In  examining  the  cases  cited  it  will  be  no- 
ticed that  the  courts  in  the  different  states  have  dealt  with  the  ques- 
tion differently.  In  some  the  exception  has  been  extended  much  fur- 
ther than  in  others.  In  Massachusetts  and  New  Jersey  the  dispo- 
sition has  been  to  confine  it  to  declarations  made  under  certain  pre- 
scribed conditions,  namely,  by  owners  of  the  property  while  engaged 
in  pointing  out  their  boundaries.  In  the  case  of  Morton  v.  Folger, 
15  Cal.  275,  the  facts  were  as  follows :  A.  v.  X.  In  ejectment  to  re- 
cover certain  lands,  part  of  a  large  tract,  concerning  other  parts  of 
which  A.  had  previously  brought  suits  against  other  persons.  On  the 
trial  of  the  previous  suits,  A.  had  introduced  as  a  witness  a  certain 
surveyor,  who  testified  as  to  boundaries.  The  same  boundaries  be- 
coming material  on  the  trial  of  the  case  with  X.,  and  the  surveyor 


I 


§§  202-204)   REAL  EXCEPTIONS  TO  GENERAL  RULE.      337 

With  respect  to  matters  of  private  concern,  other  than 
boundaries,  and  in  no  wise  affecting  the  public  at  large  or 
any  single  community,  the  rule  is  uniform  that  hearsay  will 

being  dead,  A.  offers  his  previous  testimony.     Held,  that  it  was  ad- 
missible.    In  reference  to  the  American  doctrine  the  court  say :     "It 
is  not  necessary  however,  according  to  the  authorities  in  the  majority 
of  the  American  states,  that  the  hearsay,  to  entitle  it  to  be  received, 
should  be  general,  or  relate  to  boundaries  in  which  the  public  or  nu- 
merous persons  are  interested.     It  may  be  limited  to  particular  facts 
embracing  the  declarations  of  a  single  individual,  provided  such  in- 
dividual had,  from  his  situation,  the  means  of  knowledge,  and  was 
disinterested  in  the  matter  and  may  relate  only  to  the  boundary  of  a 
private  estate."     In  Detweiler  v.  City  of  Toledo,  above  cited,  the  tes- 
timony allowed  consisted  of  the  field  notes  of  a  surveyor,  showing 
the  true  boundary  lines;  the  sun^eyor  being  dead.     Where  the  dec- 
laration of  a  surveyor  contradicts  the  evidence  left  by  him  in  his  of- 
ficial act  and  sur^-ey,  as  where  he  stated  that  a  tree  marked  as  a 
monument  by  him  was  in  fact  not  the  correct  monument,  the  declara- 
tion will  not  be  received.     Ellison  v.  Branstrator,  153  Ind.  146,  54 
N.  E.  433.     In  Harriman  v.  Brown,  8  Leigh  (Va.)  697,  we  find  the 
following  (pages  709,  710) :     "Because  we  have  not  manors,  shall  we 
therefore  lose  the  benefit  of  the  rule  which  considers  boundary  as 
matter  of  reputation,  and  permits  hearsay  evidence  of  its  locality? 
If  a  like  state  of  things  exists  among  us,  if  the  principle  will  be 
found  to  apply  in  its  utmost  strictness,  shall  we  reject  the  evidence 
because  the  case  is  not  identical?    By  no  means.    *    *    *    If  reputa- 
tion is  admissible  to  establish  the  boundaries  of  a  manor,  because  all 
the  tenants  of  the  manor  are  interested  therein,  and  are  naturally 
conversant  about  the  boundary,  and  may  be  presumed  to  discourse 
together  about  it,  what  shall  we  say  in  the  case  of  our  wild  lands, 
which  were  covered  with  early  adventurers,  whose  chief  concern  was 
to  make  themselves  acquainted  with  the   lines  and  corners  of   all 
around  them?    Every  one  who  knows  anything  of  the  history  of  that 
countiy  must  know  the  deep  interest  and  familiar  knowledge  which 
the  early  settlers  possessed  in  relation  to  the  corners  and  boundaries 
and  localities,  not  only  of  their  own  particular  tract,  but  of  almost 
every  tract  within  range  of  their  settlement.     Every  one  knows  that 
such  subjects  were  not  only  the  familiar  topics  of  conversation,  but 
that  they  were  the  all-absorbing  topics.     I  will  venture  to  conjecture 
that,  for  one  discussion  in  private  conversation  as  to  the  boundaries 
of  an  English  manor,  there  have  been  a  hundred  animated  and  inter- 
ested debates  about  the  situation  of  a  corner  tree  in  our  western 
counties.     I  take  it,  therefore,  that  every  motive  for  the  admission 
of  hearsay  testimony  as  to  bouudarj'  in  case  of  a  manor  applies  with 
equal  force  to  its  admission  in  questions  of  boundary  with  us."     In 
Wooster  v.  Butler,  13  Ck)nn.  309,  315,  the  fact  proved  by  hearsay  evi- 
dence was  a  fact  of  general   interest — evidentiary,    however,   of  a 

m'kelv.ev.(2d  ED.)— 22 


338  HEARSAY.  (Ch.  11 

not  be  allowed. ^*^  Nor  will  declarations  or  reputation  be 
received  to  prove  particular  facts  from  which  the  location  of 
private  boundaries  may  be  inferred.  In  those  jurisdictions 
where  the  exception  is  extended  to  include  proof  of  private 
boundaries,  this  limitation  is  observed  in  the  same  manner 
as  in  respect  to  public  matters. ^*^  There  seems  to  be  no  dis- 
tinction between  cases  where  the  question  of  public  interest 
is  a  main  fact  in  issue,  and  cases  where  it  is  merely  evidentiary. 
In  both,  hearsay  is  admitted.^** 

Where  the  matter  is  one  of  public  interest,  declarations 
made  by  any  one  since  deceased  are  admissible.  Every  per- 
son is  a  member  of  the  public,  and  as  such  his  declarations 
are  as  good  as  those  of  any  other  person.  It  is  not  a  ques- 
tion here  of  qualification.^*^  In  respect  to  matters  of  gen- 
eral interest,  the  fact  that  the  person  whose  declarations  are 
offered  was  a  member  of  the  community  interested  must  be 

question  of  private  boundary.  The  evidence  allowed  was  the  testi- 
mony of  two  aged  men  that  when  they  were  young  they  had  heard 
old  men,  since  deceased,  say  that  there  was  a  traveled  road  or  high- 
way over  a  certain  piece  of  land.  The  location  of  the  highway  was  a 
fact  tending  to  show  the  location  of  the  private  boundary  claimed  by 
the  plaintiff.  The  court,  however,  lay  it  down  flatly  that  the  doctrine 
has  been  extended  "to  prove  the  boundaries  of  lauds  between  indivi- 
dual proprietors." 

242  Peck  V.  Clark,  142  Mass.  436,  440,  8  N.  E.  335;  Roe  v.  Strong, 
107  N.  Y.  3."0,  14  N.  E.  2M.  In  Inhabitants  of  Abington  v.  Inhabit- 
ants of  North  Bridgewater,  23  Pick.  (Mass.)  170,  174,  the  question 
arose  as  to  the  residence  of  a  pauper — whether  in  the  one  town  or  the 
other.  The  question  reduced  itself,  by  the  peculiar  circumstances  of 
the  case,  to  the  question  of  the  exact  location  of  a  house  which  was  on 
or  veiT  near  the  boundary  line  between  the  two  towns.  To  show  its 
location,  declarations  of  deceased  persons  familiar  with  the  locality 
were  offered.  It  was  held  that  they  were  admissible,  and  the  ques- 
tion was  analogous  to  a  question  of  boundary, — a  conclusion  scarcely 
.iustified  by  the  facts,  since  in  no  sense  was  the  boundary  in  issue, 
either  as  a  main  fact  or  an  evidentiary  one.  A  later  case  in  Massa- 
chusetts, without  referring  in  any  way  to  Inhabitants  of  Abington 
V.  Inhabitants  of  North  Bridgewater,  seems  to  reach  an  opposite  con- 
clusion.    Hall  V.  Mayo,  97  Mass.  416, 

243  Wendell  v.  Abbott,  45  N.  H.  349;  Eraser  v.  Hunter,  5  Cranch, 
C.  C.  (U.  S.)  470,  Fed.  Cas.  No.  5,063. 

244  In  Wooster  v.  Butler,  13  Conn.  309,  315,  the  public  matter  in 
question  was  evidentiary. 

245  Drury  v.  Railroad  Co.,  127  Mass.  571,  581. 


§  205)  REAL   EXCEPTIONS   TO   GENERAL   RULE.  339 

shown  before  the  declarations  can  be  admitted.-*®  It  is  gen- 
erally held  in  the  jurisdictions  where  the  declarations  are  re- 
received  on  questions  of  private  boundary  that  it  must  ap- 
pear that  the  declarant  was  in  a  position  to  know  about  the 
subject,  and  that  when  the  declaration  was  made  it  was  in 
connection  with  the  pointing  out  of  the  boundaries. '^^^ 

SAME— TW^O  KINDS   OF  HEARSAY  ADMISSIBLE. 

205.    Specific  declarations  and  general  reputation  are  both  ad- 
missible npon  matters  of  public  or  general  interest. 

If  it  be  settled  that  a  matter  in  question  is  a  matter  of  public 
or  of  general  interest,  it  is  universally  held  that  both  gen- 
eral reputation  and  declarations  of  deceased  persons  will  be 
received.  As  to  public  boundaries,  the  admission  of  general 
reputation  was  an  early  practice  of  the  courts,^**  and  its  exten- 
sion to  specific  declarations  may  have  been  a  natural  develop- 
ment. With  respect  to  private  boundaries,  as  already  ex- 
plained, the  law  followed  a  different  course  in  this  country 
from  that  which  became  established  in  England,  and  it  went  to 
the  full  length  of  allowing  both  general  reputation  and  specific 
declarations  as  proof.-*^  Where  specific  declarations  are  of- 
fered, it  must  clearly  appear  that  the  declarant  is  dead,  before 
they  will  be  received.-^"     And  it  has  been  held  that,  if  the 

246  McKinnon  v.  Bliss,  21  N.  Y.  206,  218.  In  McKiunon  v.  Bliss, 
supra,  the  question  at  issue  was  the  existence  of  a  royal  grant  to  cer- 
tain land,  covering  several  to\ATis,  and  occupied  hy  many  people. 
It  did  not  appear  that  any  of  the  inhabitants  occupied  their  lands, 
or  claimed  to,  by  virtue  of  title  derived  under  this  grant.  It  was  ac- 
cordingly held  that  reputation  among  them  that  the  letters  patent 
had  during  the  Revolution  been  buried  in  the  ground,  and  thus  been 
lost,  was  inadmissible. 

247  Hunnicutt  v.  Peyton,  102  U.  S.  333,  360,  26  D.  Ed.  113;  Holmes 
V.  Turner's  Falls  Ck).,  150  Mass.  535,  544,  23  N.  E.  305,  6  L.  R.  A.  283; 
Long  V.  Colton,  116  Mass.  414 ;  Bethea  v.  Byrd,  95  N.  C.  309,  59  Am. 
Rep.  240 ;  Martyn  v.  Curtis,  68  Vt.  397,  35  Atl.  333 ;  High's  Heirs  v. 
Pancake,  42  W.  Va.  602,  26  S.  PI  536. 

248  See  cases  referred  to  in  Thayer,  Cas.  Ev.  (2d  Ed.)  p.  418,  note. 
24  9  Cases  cited  in  note  241,  ante,  p.  336. 

25oFlagg  V.  Mason.  8  Gray  (Mass.)  556;  Buchanan  v.  Moore.  10 
Serg.  &  R,  (Pa.)  275 ;  Smith  v.  Cdrnett,  38  S.  W.  689,  18  Ky.  Law  Rep. 
818. 


340  HEARSAY.  (Ch.  11 

declaration  did  not  relate  specifically  to  the  particular  land  in 
dispute,  it  would  be  excluded;  that  is,  a  general  statement, 
which  by  implication  includes  the  land  about  which  question 
is  raised,  would  not  be  considered  of  sufficient  importance  to 
justify  its  admission. 251  The  usual  requirement  in  regard  to 
statements  introduced  in  evidence  being  made  prior  to  the  ex- 
istence of  the  controversy  in  which  they  are  sought  to  be 
used  applies  here.  This  is  a  matter  which  is  held  to  have  so 
important  a  bearing  upon  their  credibility  that  it  is  a  necessary 
condition  to  their  use.-''^ 


PUBLIC  DOCUMENTS  AND  BOOKS. 

206.  Books  and  documents  of  a  public  nature,  in  whicli  are 
recorded  facts  to  be  preserved  for  public  reference,  are 
admissible. 

There  are  many  instances  where  records  are  kept  by  persons 
occupying  public  office,  or  engaged  in  occupations  of  a  pub- 
lic nature.  These  records,  though  somewhat  similar  in  kind 
to  those  of  which  the  court  may  take  judicial  notice,  do  not 
usually  have  a  sufficient  degree  of  publicity  to  bring  them  with- 
in the  limits  of  that  class  of  matters.  They  are,  however,  deem- 
ed to  have  sufficient  guaranty  of  reliability  to  render  them  ad- 
missible if  offered  in  evidence.  The  fact  that  they  are  kept 
for  reference  by  a  person  having  no  interest  to  falsify  them, 
and  that,   if   untrue,  they  would  be  readily   discovered   and 

2  51  Dawson  v.  Town  of  Orange,  78  Conn.  96,  61  Atl.  101.  In  a  re- 
cent case  the  requirement  respecting  deatli  of  the  declarant  has  been 
stated  in  a  broader  form ;  the  admissibility  having  been  said  to  ex- 
tend to  deceased  person  or  persons  supposed  to  be  dead,  or  unavailable 
as  witnesses.  City  of  Hartford  v.  Maslen,  76  Conn.  599,  57  Atl.  740. 
In  this  ease  an  article  in  a  newspaper  was  offered  to  show  a  general 
public  understanding  as  to  the  purpose  for  which  certain  land  had 
been  purchased  by  a  city.  It  was  held  inadmissible.  It  did  not  ap- 
pear that  the  author  had  any  particular  knowledge  on  the  subject,  or 
that  he  was  unavailable  as  a  witness. 

252  Richards  v.  Bassett,  10  Barn.  &  C.  657,  per  Dittledale,  J.,  at 
page  663.  But  it  has  been  held  that,  if  the  declarations  made  after 
suit  brought  are  shown  to  be  repetitions  of  similar  declarations  made 
before,  the  principle  excluding  them  does  not  apply.  Coate  v.  Speer, 
3  McCord  (S.  C.)  227,  15  Am.  Dee.  627. 


§  206)     KEAL  EXCEPTIONS  TO  GENERAL  RULE.        341 

corrected,  makes  them  worthy  of  credence.  The  element  of 
duty  also  enters  into  the  case.  Usually  the  person  keeping  the 
records  Ic  under  some  obligation,  official  or  otherwise,  to  keep 
them;  and  this  brings  them  close  to  those  entries  in  account 
books  which  are  admitted  because  made,  in  the  regular  course 
of  business,  pursuant  to  a  duty.  The  application  of  this  ex- 
ception to  the  hearsay  rule  in  the  early  cases  caused  the  admis- 
sion of  acknowledgments  of  deeds  made  before  a  court  of 
record,  enrollments  of  deeds,  fines  and  recoveries,  and  many 
records  of  similar  nature. ^^^  The  admission  of  records  of 
births,  deaths,  and  marriages  kept  by  the  civil  authorities  pur- 
suant to  statute,  or  even  by  religious  orders  according  to 
custom ;  of  records  of  the  weather  bureau  as  to  the  condition 
of  the  weather ;  of  the  post-office  department  as  to  registered 
letters — are  more  modern  examples  of  the  application  of  the 
same  principle.-^*  It  is  a  necessary  condition  to  the  admissi- 
bility of  a  public  record  or  document  that  it  shall  have  been 
intended  to  be  open  to  public  inspection.  The  mere  fact  that 
the  record  is  made  by  a  public  officer,  even  though  he  be  act- 
ing pursuant  to  duty,  does  not  make  it  one  intended  to  be 
public.     A  confidential  report  will  therefore  be  excluded.^^^ 

253  Smartle  v.  Williams.  1  Salk.  280;  Lynch  v.  Gierke,  3  Salk.  154. 
See  Thayer,  Cas.  Ev.  (2(1  Ed.j  pp.  428,  429,  where  the  above  and  other 
cases  are  referred  to. 

2  54  Kennedy  v.  Doyle,  10  Allen  (Mass.)  161;  Pells  v.  Webquish,  129 
Mass.  469;  Gurney  v.  Howe,  9  Gray  (:\Iass.)  404,  69  Am.  Dec.  299; 
Evanston  v.  Guun,  99  U.  S.  660,  25  L.  Ed.  306;  Anderson  v.  Hilker, 
38  Wash.  632,  80  Pac.  848.  It  has  been  held  that  records  of  the 
weather  made  by  a  railroad  agent  and  his  clerks,  and  not  preserved 
under  any  requirement  of  law  or  rule  of  the  railroad  company,  are 
inadmissible.  Monarch  Mfg.  Co.  v.  Railroad  Co.,  127  Iowa,  511,  103 
N.  W.  493. 

255  sturla  V.  Freccia,  43  Law  T.  (N.  S.)  209.  Lord  Blackburn  in 
this  case  discusses  very  fully  .the  elements  which  are  necessary  to 
make  a  document  public,  within  the  meaning  of  this  exception.  He 
says  (page  214) :  "What  a  public  document  is,  within  that  rule  is, 
of  course,  the  great  point  which  we  have  now  to  consider.  *  *  * 
I  do  not  think  that  'public'  is  to  be  taken  there  as  meaning  the  whole 
world.  I  think  an  entry  in  the  books  of  a  manor  is  public,  in  the 
sense  that  it  concerns  all  the  people  interested  in  the  manor ;  and  an 
entry  in  a  corporation  book  concerning  a  corporation  matter,  or  some- 
thing in  which  all  the  corporation  is  concerned,  would  be  public,  with- 
in that  sense.     But  it  must  be  a  public  document,  and  it  must  be  made 


342  HEARSAY.  (Ch.ll 

■ 

Declarations  of  this  class  are  frequently  confused  with  mat- 
ters which  are  properly  the  subject  of  judicial  notice. ^^^  The 
one  class  shades  into  the  other,  but  at  the  extremes  they  are 
entirely  distinct. 

The  statutory  provisions  have  quite  generally  supplemented 
the  common-law  rules  respecting  the  admission  of  this  class 
of  evidence,  and  it  will  be  well  to  consult  the  statute  in  any 
jurisdiction  in  which  the  question  may  arise. 

by  a  public  officer.  *  *  *  But  I  think  that  the  very  object  of  it 
must  be  that  it  should  be  made  for  the  purpose  of  being  kept  public, 
so  that  the  persons  concerned  in  it  may  have  access  to  it  afterwards." 
Some  instances  of  the  more  liberal  application  of  this  exception  are 
as  follows:  A  coroner's  verdict  on  the  question  as  to  the  cause  of 
death.  Knights  Templars'  &  Masons'  Life  Indemnity  Co.  v.  Crayton, 
209  111.  550,  70  N.  E.  1066.  Life  tables.  Knott  v.  Peterson,  125  Iowa, 
404,  101  N.  W.  173 ;  Bouvier's  Law  Dictionary  as  to  the  meaning  of 
the  word  "adult"  under  the  civil  law;  Banco  De  Sonora  v.  Casualty 
Co.,  124  Iowa,  576,  100  N.  W.  532,  104  Am.  St.  Rep.  367.  Record  of 
the  speed  of  a  horse,  published  by  a  trotting  association  in  a  register 
generally  accepted  as  official.  Pittsburgh,  C.,  C.  &  St.  L.  Ry.  Co.  v. 
Sheppard,  56  Obio  St.  68,  46  N.  E.  61,  60  Am.  St.  Rep.  732.  Ship's 
papers,  executed  by  the  authorities  of  a  foreign  government.  Grace 
V.  Browne,  86  Fed.  155,  29  C.  C.  A.  621.  Pedigree  record  of  dogs. 
Citizens'  Rapid  Transit  Co.  v.  Dew,  100  Tenn.  317,  45  S.  W.  790,  40 
L.  R.  A.  518,  66  Am.  St.  Rep.  754.  Code  of  Rules  of  the  Master  Car 
Builders'  Association.  Union  Stockyards  Co.  v.  Goodwin,  57  Neb. 
138,  77  N.  W.  357.  Records  and  official  papers  of  the  Confederate 
Government.  Oakes  v.  U.  S.,  174  U.  S.  778,  19  Sup.  Ct.  864,  43  L.  Ed. 
1169.  Historical  writings  relating  to  Indian  tribes,  their  govern- 
ments, laws,  and  customs.  Onondaga  Nation  v.  Thacher  (Sup.)  61 
N.  Y.  Supp.  1027.  A  tax  roll.  Smith  v.  Sailly,  66  Kan.  139,  71  Pac. 
249.  Some  of  the  matters  which  have  been  held  inadmissible,  under 
a  stricter  interpretation  of  the  exception,  are :  Medical  works  on  the 
subject  of  effect  of  physical  injuries.  Union  Pac.  Ry.  v.  Yates,  79 
Fed.  584,  25  C.  C.  A.  103,  40  L.  R.  A.  533.  A  surveyor's  report  made 
to  the  court.  Helton  v.  Asher,  103  Ky.  730,  46  S.  W.  222,  82  Am. 
St.  Rep.  601.  A  city  directory,  giving  the  directors  and  officers  of  cor- 
porations. Tichenor  v.  Newman,  186  111.  264,  57  N.  E.  826.  A  copy 
of  board  of  health  record,  upon  the  question  of  the  cause  of  death 
of  a  person.  Beglin  v.  Insurance  Co.,  173  N.  Y.  374,  66  N.  E.  102. 
A  private  catalogue  of  horses.  Louisville  &  N.  R.  Co.  v.  Frazee,  71 
S.  W.  4.37,  24  Ky.  Law  Rep.  1273. 
256  steph.  Dig.  Ev.  arts.  33-35. 


§§  207-208)      REAL   EXCEPTIONS   TO    GENERAL   RULE.  343 

207.  The  public  nature  of  the  books  and  documents  admitted 
under  this  exception  must  be  proved  or  sufficiently 
appear  as  preliminary  to  their  being  received  in  evi- 
dence. 

It  is  always  a  question  of  determination  by  the  court  wheth- 
er the  document  shows  on  its  face,  or  is  by  outside  evidence 
proved  to  be  of,  a  character  which  will  justify  its  admission. 
There  is  no  definite  rule  which  can  be  laid  down  on  this 
subject,  as  every  case  presents  its  own  circumstances.  Many 
times  the  document  or  book  will  by  some  certificate  or  act  of 
authentication  carry  its  own  evidence  of  its  nature.  In  other 
cases  outside  testimony  is  necessary.  For  example,  a  printed 
copy  of  foreign  statutes,  if  not  certified,  will  require  some 
testimony  as  to  their  being  regularly  printed  copies  issued 
under  some  competent  authority.^  ^'^ 


DECLARATIONS  W^HICH  ARE  PART  OF  THE  RES  GESTAE. 

208.  Declarations  made  at  the  time  of  the  happening  of  an 
event  by  the  parties  participating  therein  are  admis- 
sible. 

The  subject  of  res  gestae,  or  res  gesta,  as  it  is  often  called, 
is  one  of  considerable  complexity  as  exhibited  by  the  cases.^°® 
In  theory  it  is  simple.  Every  act  which  is  done,  every  event 
which  happens,  is  set  in  a  frame  of  surrounding  circumstances 
which  serve  to  make  it  stand  out  and  appear  strong  and  clear. 
These  circumstances  may  consist  of  declarations,  made  at 
the  time  by  participants  in  the  act,  of  other  acts  done,  of  the 
position,  condition,  and  appearance  of  inanimate  objects,  and 
of  other  elements  which  serve  to  illustrate  the  main  act  or 
event.    Subject  to  reasonable  and  proper  limitations,  such  sur- 

2  57  Nashua  Savings  Bank  v.  Land  Co.,  189  U.  S.  221,  23  Sup.  Ct 
517,  47  L.  Ed.  782.  In  this  case  the  testimony  was  that  the  copies 
were  "issued  by  authority,  being  printed  by  her  majesty's  printer,  and 
are  as  such  by  law  receivable  in  evidence  without  further  proof" ; 
the  testimony  being  given  by  an  attorney  and  solicitor  of  30  years' 
experience. 

258  See  opinion  of  Beasley,  C.  J.,  in  Hunter  v.  State,  40  N.  J. 
Law,  495,  536. 


344  HEARSAY.  (Ch.  11 

rounding  circumstances  may  be  proved  in  evidence  as  a  part 
of  the  thing  done  (res  gesta).^^^  So  long  as  these  circumstances 
do  not  consist  of  declarations  and  statements,  they  are  intro- 
duced as  a  matter  of  course,  proved  by  either  side  without 
question,  unless,  indeed,  they  get  too  far  away  from  the  main 
fact,  when,  under  rules  having  no  relation  to  the  subject  of 
hearsay,  they  are  excluded. -"" 

It  is  when  they  comprise  statements,  exclamations,  answers 
to  questions,  and  other  verbal  utterances  by  the  participants 
in  the  act  or  event,  that  they  occupy  the  attention  of  the 
courts.  If  it  had  been  possible  to  treat  verbal  utterances  made 
under  such  conditions  purely  as  acts,  and  not  in  any  sense 
as  evidence  of  the  things  stated,  the  subject  of  res  gestae  would 
not  have  belonged  under  the  head  of  exceptions  to  the  hear- 
say rule.  But  declarations  of  this  sort  were  urged  upon  the 
courts  most  strongly  when  they  were  wanted  and  needed  as 
evidence  of  the  facts  to  which  they  referred,  and  the  courts 
received  them  as  such  evidence,  and  thus  created  another  ex- 
ception to  the  rule  against  hearsay. ^"^  The  ground  of  relia- 
bility upon  which  such  declarations  are  received  is  their  sponta- 
neity. They  are  the  extempore  utterances  of  the  mind  un- 
der circumstances  and  at  times  when  there  has  been  no  suffi- 
cient opportunity  to  plan  false  or  misleading  statements ;  they 
exhibit  the  mind's  impressions  of  immediate  events,  and  are 
not  narrative  of  past  happenings ;  they  are  uttered  while  the 
mind  is  under  the  influence  of  the  activity  of  the  surroundings. 


259  Steph.  Dig.  Ev.  art  3.     Boyd  v.  Railroad  Ck).,  112  III.  App.  50. 

2  60  They  may,  for  example,  get  into  the  class  of  "too  remote  mat- 
ters."    See  ante.  p.  167. 

261  Insurance  Co.  v.  Mosley,  8  Wall.  (U.  S.)  397,  19  L.  Ed.  437; 
Waldele  v.  New  York  Cent.  &  H.  R.  R.,  95  N.  Y.  274,  47  Am.  Rep. 
41 ;  Earle  v.  Earle,  11  Allen  (Mass.)  1 ;  Rex  v.  Foster,  6  Car.  &  P.  325 ; 
Christopherson  y.  Railroad  Co.  (Iowa)  109  N.  W.  1077 ;  Horst  v.  Lewis 
(Neb.)  103  N.  W.  460.  In  Lander  v.  People,  104  111.  248,  the  fact  of 
which  the  declaration  was  a  part  was  the  recognition  of  the  prisoner 
by  the  witness  on  the  day  after  the  perpetration  of  the  crime.  This 
was  collateral  to  the  main  fact  in  issue,  to  wit,  whether  the  prisoner 
was  the  person  who  committed  the  crime.  An  exclamation  by  the 
witness  to  a  companion,  who  was  also  a  witness,  as  follows :  "There 
goes  the  man,"  with  the  companion's  reply,  "Yes,  there  he  goes,"  was 
held  properly  admitted  as  part  of  the  res  gestae. 


§  209)      REAL  EXCEPTIONS  TO  GENERAL  RULE.        345 

As  a  good  illustration  we  have  the  cases  of  statements  made  by 
persons  injured,  or  others  in  their  presence  at  the  time  of  the 
injury.^*^  Taken  altogether,  it  is  perhaps  safe  to  say  that 
in  the  case  of  no  exception  to  the  hearsay  rule  is  there  as 
little  danger  and  as  much  assistance  to  the  cause  of  justice  as 
in  this,  taking  into  consideration  the  manner  in  which  it  has 
been  applied.^^^ 


SAME— MUST  BE  CONTEMPORANEOUS. 

209.  Declarations  of  this  sort,  to  be  admissible,  must  be  made 
ivbile  the  act  is  being  done  or  the  event  is  happen- 
ing, or  so  soon  thereafter  that  the  mind  of  the  declar- 
ant is  actively  influenced  by  it. 

The  conflict  in  the  decisions  arises  mainly  in  regard  to  the 
extent  of  time  which  the  res  gestae  is  held  to  cover ;  and  when 
it  is  considered  that  each  case  where  a  declaration  of  this  sort 

26  2  Hutcheis  v.  Railroad  Co.,  128  Iowa,  279,  103  N.  W.  779.  Here 
the  plaintiff  fell  from  a  street  car,  by  reason  of  negligence  in  failure 
to  let  down  a  folding  step.  As  she  fell  she  exclaimed,  "Yes,  let  down 
the  step  after  I  fall!"  The  declaration  was  a  typical  instance  of  res 
gestae.  It  was  clearly  admissible,  both  as  a  part  of  the  transaction, 
and,  having  been  received,  as  evidence  also  that  the  step  was  not  let 
down  until  after  the  plaintiff  fell.  In  this  case  the  statement  was 
spontaneous  and  coincident  with  the  event.  Declarations  admissible 
under  this  exception  are  not  always  so  near  in  point  of  time  to  the 
fact  which  is  the  subject  of  proof.  For  example,  in  Rothrock  v.  City 
of  Cedar  Rapids,  128  Iowa,  252,  lO.S  N.  W.  475,  the  declarations,  which 
referred  to  the  manner  and  place  in  which  plaintiff  had  sustained 
injuries,  but  were  made  on  her  arrival  home,  within  half  an  hour 
after  the  occurrence,  were  held  admissible,  it  appearing  that  she 
was  still  suffering  from  the  injuries  and  had  the  marks  upon  her. 
But  where  the  declarations  were  made  over  a  mile  from  the  place 
of  the  accident,  and  an  hour  afterwards,  and  were  not  spontaneous, 
but  elicited  by  questions,  it  was  held  that  they  are  not  admissible. 
White  V.  City  of  Marquette,  140  Mich.  310,  103  N.  W.  698.  The 
action  of  other  passengers  at  the  time  of  the  accident  has  been  held  to 
be  admissible  as  part  of  the  res  gestce.  Chretien  v.  Railroad  Co., 
113  La.  761,  37  South.  716,  104  Am.  St.  Rep.  519. 

2  63  It  has  been  said  that  the  modern  tendency  is  to  extend,  rather 
than  to  narrow,  this  exception  to  the  hearsay  rule,  and  to  consider 
the  grounds  which  formerly  excluded'  such  declaration  as  affecting 
their  weight.     Jack  v.  Life  Ass'n,  113  Fed.  49,  51  C.  C.  A.  36. 


346  HEARSAY.  (Ch.  11 

is  offered  is  an  independent  case,  to  be  treated  upon  its  own 
facts,  always,  however,  with  the  general  principle  of  admissi- 
bility in  mind,  it  will  be  seen  that  a  harmonious  classification 
of  the  cases  is  impossible.-^*  There  is  a  point  at  which  a 
statement  by  a  participant  in  an  act  becomes  a  mere  narrative 
of  a  past  occurrence,  and  when  that  point  is  reached  his  dec- 
laration is  inadmissible.'*'^  It  has  been  held  that  declarations 
made  thirty  minutes  after  the  happening  of  an  accident  are 
narrative,  and  inadmissible.^^®  When  the  declarations  are 
held  admissible,  they  are  generally  at  the  time  of  or  within  a 
few  moments  of  the  event  to  which  they  relate.^ ^'^ 

Where  A.  was  the  assignee  of  a  life  insurance  policy  upon 
the  life  of  B.,  and  brought  action  against  the  company,  evi- 
dence was  offered  by  the  company  of  declarations  made  by 
B.,  after  the  assignment  of  the  policy  to  A.,  tending  to  show 
an  intention  to  commit  suicide.  Having  been  made  some  time 
before  the  death  of  B.,  they  were  held  to  be  inadmissible,  and 
not  a  part  of  the  res  gestse.^®^  But  in  Wood  v.  State,  92  Ind. 
269,  declarations  made  half  an  hour  before  the  act  in  question 
were  held  admissible,  for  the  reason  that  they  were  part  of 
a  continuous  quarrel  or  altercation.^®^ 

Sometimes  the  declarations  are  contemporaneous  with  some 
evidentiary  fact  or  condition.  In  an  action  for  personal  in- 
juries, upon  the  question  of  damages,  the  plaintiff's  suffering 
and  pain  is  material.     It  is  held  that  exclamations  and  state- 

264  See  opinion  of  Fletclier,  J.,  in  Lund  v.  Inliabitants  of  Tyngs- 
borough,  9  Cush.  (Mass.)  36,  42. 

2  65  Rockwell  V.  Taylor,  41  Ck)nn.  55,  59. 

266  Vieksburg  &  M.  R.  Co.  v.  O'Brien,  119  U.  S.  99,  103,  7  Sup. 
Ct.  118,  30  L.  Ed.  299;  White  v.  Railway  Co.,  123  Ga.  353,  51  S.  E. 
411,  where  the  time  was  an  hour.  A  declaration  made  ten  minutes 
after  the  accident  has  been  held  inadmissible.  The  Saranac  (D.  C.) 
132  Fed.  930.  Also  a  declaration  made  "several  minutes"  after  the 
accident.  Hot  Springs  St.  R.  Co.  v.  Hildreth  (Ark.)  82  S.  W.  245; 
See,  also.  South  Covington  &  C.  St.  R.  Co.  v.  Riegler,  82  S.  W.  382, 
26  Ky.  Law  Rep.  666. 

26  7  See  cases  cited  under  note  261,  p.  344,  supra;  Pool  v.  Warren 
County.  123  Ga.  205,  51  S.  E.  328. 

26  8  Ross-Lewin  v.  Insurance  Co.,  20  Colo.  App.  262,  78  Pac.  305. 
P.ut  see  Kerr  v.  Modern  Woodmen  of  America,  117  Fed.  593,  54 
C.  C.  A.  655. 

289  Hannabalson  v.  Sessions,  90  N.  W.  93. 


§  210)     REAL  EXCEPTIONS  TO  GENERAL  RULE.        347 

ments,  showing  the  existence  of  such  suffering  and  pain,  are 
admissible,  even  though  same  be  after  the  injury."' 

SAME-CASES  NOT  BELONGING  UNDER  THIS  HEAD. 

210.  Declarations  of  agents  concerning  the  business  of  their 
principals,  of  the  injured  person  in  rape  cases,  and 
of  insolvent  persons  where  their  insolvency  is  under 
inquiry,  are  not  properly  included  in  this  class  of 
declarations. 

The  subject  of  res  gestae  has  been  confused  by  nothing  more 
than  by  the  loose  manner  in  which  declarations  in  certam 
classes  of  cases  have  been  treated  as  declarations  which  are  a 
part  of  the  res  gestae,  and  held  admissible  on  that  ground.    The 
cases  referred  to  are  those  of  agency,  rape,  and  bankruptcy. 
The  result  has  been  mainly  felt  in  the  uncertainty  which  has 
arisen  regarding  the  extent  of  time  within  which  a  declaration 
mav  be  received  as  part  of  the  res  gestae.     When,  in  a  bank- 
ruptcy case,  a  declaration  of  the  bankrupt,  made  a  month  after 
the  act  of  bankruptcy,  is  held  admissible,  and  the  admissibility 
placed  upon  the  ground  that  the  declaration  is  a  part  of  the 
res  gestae,  while  in  an  accident  case,  a  declaration,  made  half 
an  h'our  after  the  event,  is  held  not  to  be  near  enough  in  point 
of  time  to  be  admissible,  the  query  suggests  itself  as  to  whether 
there  is  one  construction  of  the  rule  for  one  class  of  cases  and 
a  different  one  for  another.     Professor  Thayer  in  his  Cases 
on  Evidence  has  cleared  the  matter  up,  and  rendered  a  genu- 
ine service  to  the  cause  of  clear  thinking,  by  taking  out  cases  of 
agency,  rape  and  bankruptcy  from  the  class  of  ordinary  res  ges- 
tS  cases."'    In  the  agency  cases  there  is  ordinarily  no  question 
of  res  gest^.    The  questi'bn  is  one  of  admissions.     If  the  dec- 
laration of  the  agent  is  receivable,  it  is  to  be  determined  on  the 
principle  governing  the  subject  of  an  agent's  power  to  bind 
his  principal  by  his  statements.     If  he  has  power,  his  state- 
ment becomes  an  admission  of  the  principal.     If  the  circum- 

270Ca.hin  V.  Railroad  Co.,  185  Mass.  5i3,  70  N.  E.  930;  Mont- 
gomery St.  R.  Co.  V.  Shanks,  139  Ala.  489,  37  South.  166;  Indian- 
apolis St.  R.  Co.  V.  Schmidt,  163  Ind.  360.  71  N.  E.  201. 

271  Thayer,  Cas.  Ev.  (2d  Ed.)  pp.  641-651. 


348  HEARSAY.  (Ch.  11 

Stances  shown  are  not  snch  as  to  give  him  that  power,  his 
declarations  will  be  excluded. ^''^  In  cases  of  rape  the  fact 
that  the  complainant  reported  the  commission  of  the  crime  has 
always  been  admitted  as  a  piece  of  circumstantial  evidence  in 
corroboration  of  her  testimony,  and  rather  for  the  protection 
of  the  accused  than  otherwise ;  it  being  considered  a  suspicious 
circumstance  if  the  complainant  could  not  show  that  immedi- 
ately after  the  alleged  act  she  reported  and  complained  of  it. 
From  this  rule  grew  the  practice  in  certain  states  of  receiving 

27  2  In  U.  S.  V.  Goocliug,  12  Wheat.  (U.  S.)  460,  6  L.  Ed.  693,  dec- 
larations of  an  agent  were  admitted  as  a  part  of  tlie  res  gestae, 
though  in  discussing  their  admissibility  the  court  treated  the  ques- 
tion as  one  of  authority  on  the  part  of  the  agent  to  bind  his  prin- 
cipal. See  opinion  of  Story,  p.  470  of  12  Wheat.,  6  L.  Ed.  693. 
See,  also.  White  v.  IMiller,  71  N.  Y.  118,  134,  27  Am.  Rep.  13,  in  which 
Andrews,  J.,  in  discussing  the  admissibility  of  declarations  of  an 
agent,  says  (page  135  of  71  N.  Y.  [27  Am.  Rep.  13]) :  "The  general 
rule  is  that  what  one  person  says  out  of  court  Is  not  admissible  to 
charge  or  bind  another.  The  exception  Is  In  cases  of  agency ;  and 
In  cases  of  agency  the  declarations  of  an  agent  are  not  competent  to 
charge  the  principal  upon  proof  merely  that  the  relation  of  principal 
and  agent  existed  when  the  declarations  were  made.  It  must  further 
appear  that  the  agent,  at  the  time  the  declarations  were  made,  was 
engaged  in  executing  the  authority  conferred  upon  him,  and  that 
the  declarations  related  to  and  were  connected  with  the  business 
then  depending,  so  that  they  constituted  a  part  of  the  res  gestse." 
The  question  is  treated  on  the  res  gestae  basis  In  Adams  v.  Hannibal 
&  St.  J.  R.  Co.,  74  Mo.  553,  556,  41  Am.  Rep.  333 ;  Glisson  v.  Light 
Co.,  87  S.  W.  305,  27  Ky.  Law  Rep.  965;  Beckwith  v.  Mace,  140 
Mich.  157,  103  N.  W.  559;  Blgley  v.  Willams.  SO  Pa.  107,  116; 
Northern  Rac.  R.  Co.  v.  Kempton,  138  Fed.  992,  71  C.  C.  A.  246. 
In  the  latter  case,  upon  the  question  of  the  responsibility  for  delay  in 
transporting  cattle,  the  conductor's  statement,  in  answer  to  a  ques- 
tion, "Why  don't  you  get  over  the  road?"  "I  can't  get  anywhere  with 
this  dummy.  They  should  have  known  better  than  to  have  sent  It 
out  this  kind  of  weather" — was  held  to  be  admissible,  as  a  part  of 
the  res  gestae,  although  It  seems  to  rest  more  clearly  on  the  ground 
of  the  admission  of  an  agent  relating  to  the  business  in  which  he  was 
engaged  for  his  principal. 

But  it  has  been  held  that  the  conductor's  statement  as  to  the  con- 
dition or  operation  of  the  road,  made  after  the  completion  of  his 
duties,  in  connection  with  the  matter  In  question,  is  not  admissible. 
Seaboard  Air  Line  Ry.  v.  Hubbard,  142  Ala.  546,  38  South.  750. 
See,  also,  Dorry  v.  Railroad  Co..  104  App.  Dlv.  309,  93  N.  Y.  Supp. 
637.  A  proper  conception  of  the  matter  is  found  In  the  opinion  of 
Sir  William  Grant  In  Falrlle  v.  Hastings,  10  Ves.  123,  127. 


§  210)      REAL  EXCEPTIONS  TO  GENERAL  RULE.        349 

not  only  the  fact  of  the  complaint,  but  also  the  full  details  of 
the  statement  made,  on  the  erroneous  ground  that  it  was  a  part 
of  the  res  gestae.^^"     It  was  seldom  the  case  that  the  declara- 
tions were  a  part  of  the  res  gestae,  and  the  substance  of  them 
should  not,  on  this  principle  at  least,  have  been  admitted.    The 
fact  of  their  having  been  made  was  a  piece  of  circumstantial 
evidence  corroboratory  of  the  complainant's  direct  testimony, 
and  on  this  ground  such  fact  was  admissible.     In  most  juris- 
dictions this  is  the  extent  to  which  the  courts  have   gone, 
thouo-h  they  have  sometimes  spoken  of  the  declarations  even 
in  thts  aspect  as  part  of  the  res  gestse.^^*    In  insolvency  cases 
the  subject  of  motive  is  under  inquiry,  and  the  necessity  of 
introducing  declarations  of  the  insolvent  as  evidence  of  mo- 
■  tive  or  intent  was  so  strong  that  the  courts  again  resorted  to 
the  doctrine  of  res  gestae,  and  stretched  the  time  limit  to  adapt 
it  to  any  cases  where  it  seemed  just  to  receive  the  declara- 
tions."^    What  was  lost  sight  of  was  that  in  proving  intent 
or  motive  declarations  are  generally  in  the  nature  of  original 
evidence,  and  not  hearsay."^ 

273  state  V.  Kinney,  44  Conn.  153,  26  Am.  Rep.  436;  Burt  v.  State, 
23  Ohio  St.  394.  In  Hornbeck  v.  State,  35  Ohio  St.  277,  oo  Am. 
Ren  60S  the  rule  was  declared  that  the  declarations  were  recen^ahlo 
where  the  complainant  herself  testified,  but  they  were  excluded  in 
that  particular  case  on  account  of  the  incompetency  of  the  complain- 
ant as  a  witness,  she  being  an  imbecile.  To  the  same  effect  is  State 
V  Meyers,  46  Neb.  152,  64  N.  W.  697,  37  L.  R.  A.  423. 

'T?Baccio  V.  People,  41  N.  Y.  265;  State  v.  Ivins,  36  N.  J.  Law, 
233 :  Barnett  v.  State,  83  Ala.  40,  3  South.  612 ;  McMurrm  v^  Rig- 
by  80  Iowa,  322,  45  N.  W.  877;   People  v.  Mayes,  66  Cal.  o9<,  6  Pac. 

"^.H^MSn^^s  case,  15  Am.  Law  Rev.  15-20;  Ridley  v. 
Gyde  9  Bing.  349  (per  Tindal,  C.  J.,  page  351) ;  Bateman  v.  Bailey, 
5  Term  R.  512;    Rawson  v.  Haigh,  9  Moore,  217,  225 

276  The  case  of  Chicago  &  E.  I.  R.  Co.  v.  Chancellor,  165  111.  m 
46  N  E  269,  is  an  illustration  of  how  the  court  sometimes  goes 
Istray  by  treating  declarations  of  this  character  as  within  the 
princfple  of  res  gest^.  Here  the  intent  of  the  plaintiff's  intestate  to 
become  a  passenger  on  defendant's  train  became  material,  and  dec- 
iaratTons  made  bv  the  intestate  about  an  hour  before  the  tram  was 
to  Lave  were  offered.  They  were  excluded  on  the  ground  that  they 
we  e  not  res  gest«.,  when,  clearly  they  should  have  been  admi  ted  as 
Sinai  evidence  of  intent;  the  principle  of  res  gest»  having  no 
application. 


350  WITNESSES.                                     (Ch.  12 

I 

I 

CHAPTER  XII.  I 

WITNESSES. 

I 

211.  Origin  of  Rules  Excluding  Witnesses.  | 

212.  Persons  Formerly  Excluded  as  Witnesses.  j 

213.  Infidels  and  Atheists.  I 

214.  Parties  to  the  Suit.  J 

215.  Husband  or  Wife  of  Party. 

216.  Persons  Pecuniarily  Interested.  j 

217.  Naturally  Incapacitated  Persons.  i 

218.  Persons  Guilty  of  Crime.  j 

219.  Certain   Special  Cases  of  Disqualification.  i 
220-221.  Privilege — Distinguished    from    Disqualification.  ; 

222.  Privilege  of  Accused  Persons.  : 

223.  Inference  from  Failure  to  Testify.  ' 

224.  Waiver  of  Privilege. 

225.  Privilege  as  to  Particular  Subjects. 

226-228.  State  Secrets.  1 

229.  Self-Incriminating  Matters.  j 

230.  Husband  or  Wife  of  Witness  Protected.  i 

231.  How  Privilege  Claimed.  | 

232.  Waiver  of  Privilege.  ' 

233.  Remedy  in  Case  of  Denial  of  Privilege.  j 

234.  Inference  from  Exercise  of  Privilege.  ' 

235.  Privileged  ^Matter  to  be  Determined  by  Court. 

236.  Professional  Communications. 

237.  When  Relation  of  Attorney  and  Client  Exists. 

238.  What  Included  in  Privileged  Matters.  J 

239.  Inference  from  Exei-cise  of  Privilege.  ! 

240.  Consent   of  Client. 


ORIGIN  OF  RULES  EXCLUDING  WITNESSES 

211.  Rules  excluding  certain  classes  of  persons  as  witnesses 
owe  their  origin  very  largely  to  historical  reasons 
now  obsolete. 

A  considerable  portion  of  the  law  of  evidence  must  neces- 
sarily be  concerned  with  the  rules  which  have  gradually  grown 
up  in  the  courts  respecting  persons  who  may  be  witnesses, 
and  the  manner  in  which  their  testimony  may  be  given.  In 
dealing  with  this  subject,  we  have  to  deal  with  the  conditions, 


§  211)  ORIGIN   OF  RULES  EXCLUDING.  351 

customs,  and  prejudices  of  the  people  among  whom  the  Eng- 
lish law  has  developed.     Ideas  which  no  longer  have  any  ac- 
tive force  in  determining  the  practice  of  our  courts  have  never- 
theless, in  earlier  times,  executed  a  powerful  influence,  and 
shaped  rules  which  even  to  this  day  have  survived.     It  must 
be  remembered  that  the  development  of  the  judicial  system 
which  obtains  in  this  country  began  in  a  rude  way  among  a 
rude  and  half-civilized  people;    that  there  has  been  a  con- 
stant struggle,  both  judicially  and  legislatively,  to  throw  off 
the  narrow,  illiberal,  and  primitive  rules  which  the  earlier  con- 
ditions fixed  upon  the  law.     The  courts  could  not  be  better 
than  the  people  who  established  the  laws  for  the  enforcement 
of  which  the  courts  existed.     They  were  dominated  by  the 
spirit  of  the  times,  and,  from  the  difficulty  which  any  well- 
established  judicial  system  finds   in  changing  the  principles 
upon  which  it  rests  and  the  rules  and  practice  which  govern 
its  operation,  the  courts  necessarily  lagged  behind  the  people 
in  the  growth  towards  a  more  liberal  and  broader  civiliza- 
tion.    They  have  been  hampered  by  principles  long  out  of 
date,  by  rules  which  have  no  adaptation  to  present  conditions ; 
and  with  that  disinclination  which  has  always  characterized 
them,  to  in  any  way  usurp  the  legislative  functions,  they  have 
found  it  difficult  of  themselves  to  break  away  from  the  old  tra- 
ditions, usages,  and  practices.    They  have  had  to  depend  upon 
the    legislative    bodies    for   the    necessary   changes,    and   too 
often  it  has  happened  that  in  the  multitude  of  other  interests 
which  have  more  directly,  though  not  more  forcibly,  affected 
the  public,  legislators  have  lost  sight  of  their  duty  in  this 
respect.    Nowhere  do  we  see  this  illustrated  more  clearly  than 
in  the  laws  respecting  the  use  of  witnesses  in  public  tribunals. 
In  the  social  and  political  life  of  earlier  times  there  was  a  rec- 
ognized inequality  between  persons  of  different  political  and 
religious  beliefs,  as  well  as  between  the  sexes.     It  was  but 
natural  that,  in  fixing  the  standing  in  court  of  persons  offered 
as  witnesses,  regard  should  have  been  paid  to  these  matters. 
The  result  was  rules   of  exclusion  which  prevented  certain 
persons  from  being  witnesses  at  all.    These  early  rules  of  ex- 
clusion  may,   in   their   development,    have    felt   the   influence 
of  the  peculiar  relation  which  persons  summoned  as  witnesses 
bore  to  the  case.    Reference  is  made  to  the  early  practice,  un- 


352  WITNESSES.  (Ch.  12 

der  which  the  witnesses  and  jurymen  were  identical.  In  case 
of  the  investigation  of  a  crime,  persons  were  summoned  from 
the  neighborhood,  who  were  supposed  to  be  most  intelHgent 
and  best  able  to  tell  about  the  matter.  They  thus  had  a  semi- 
official character,  and  care  was  to  be  used  in  their  selection. 
This  idea  was  not  gotten  rid  of  at  once,  and  its  effect  was  felt 
long  after  the  entire  separation  of  the  jury  from  the  witnesses 
was  an  accomplished  fact.^ 


PERSONS    FORMERLY   EXCLUDED    AS    WITNESSES. 

212.    The    early    rules    of    exclusion    prevented    the   following 
classes  of  persons   from  testifying: 

(a)  Those     who     by     reason     of     peculiar     religious     belief, 

or    lack    of    any    religious    belief,    were    not    supposed 
to  be  amenable  to  the  binding  force  of  an  oath. 

(b)  Parties  to  the  suit. 

(c)  The    husband    or    w^ife    of    a    party    to    the    suit,    except 

where   a    crime   w^as   charged  by   the   husband   against 
the  wife,  or  vice  versa. 

(d)  Persons  pecuniarily  interested. 

(e)  Naturally  incapacitated  persons. 

(f)  Those  guilty  of  certain  crimes. 

Speaking  generally,  the  trend  of  these  exclusions  was  about 
in  the  same  direction  as  the  present  rules  excluding  persons 
from  acting  as  jurors,  thus  giving  another  illustration  of  the 
influence  of  the  old  jury  system.  The  substantial  disappear- 
ance of  these  rules  of  exclusion  may  be  traced  between  the 
years  1823  and  1853.  In  this  country  the  disappearance  went 
on  more  rapidly  than  in  England,  due  to  the  fact  that  the  old 
ideas  had  less  effect  upon  our  courts  than  in  the  country  where 
they  were  native. 


INFIDELS  AND  ATHEISTS. 

213.  Formerly  all  persons  not  Christians  ^vere  excluded  from 
testifying;  but  at  the  present  time  there  is  no  exclu- 
sion upon  the  ground  of  religious  belief,  or  the  lack 
of  it. 

1  See  editorial  note  in  Thayer,  Cas.  Ev.  (2d  Ed.)  p.  10G6. 


§  213)  INFIDELS   AND   ATHEISTS.  353 

The  theory  of  the  oath  has  always  been  that  it  gave  a  pe- 
ctiHar  sanctity  to  testimony,  and  that  without  the  oath  there 
was  no  guaranty  of  truthfulness.  Under  these  circumstances 
(and  the  law  recognized  no  substitute  for  the  oath),  it  was 
quite  natural  that  persons  who,  by  reason  of  their  religious 
belief,  felt  no  force'  in  the  oath,  should  have  been  excluded 
from  testifying.^  In  fact,  without  a  change  in  the  theory  it 
would  have  been  inconsistent  and  absurd  to  have  allowed  a 
person  who  refused  to  take  an  oath,  or,  if  taking  it,  took  it 
only  as  a  matter  of  form,  to  give  his  testimony.  The  broad- 
ening of  the  form  of  the  oath,  with  the  recognition  that  other 
religious  beliefs  besides  the  belief  of  the  established  church 
might  exercise  the  same  influence  over  the  mind,  and  furnish 
the  same  guaranty  of  truthfulness,  resulted  in  the  final  dis- 
appearance of  this  rule  of  exclusion.  The  change  came  by 
degrees,  however.  It  was  hard  for  the  English  courts  to  break 
away  from  the  predominant  idea  of  the  English  people  that 
theirs  was  the  only  true  religion,  and  to  concede  that  other 
forms  of  worship  might  exercise  a  solemnizing  influence  on 
the  mind  of  equal  force.  But  the  change  finally  came  about, 
and  to-day  little  is  left  of  the  old  rule.^  In  the  case  of  the  sect 
of  Quakers,  so  obnoxious  to  the  early  English  churchmen. 


2  Butts  V.  Swartwood,  2  Cow,  (N.  Y.)  431 ;  Blair  v.  Seaver,  26  Pa. 
274;    Clinton  v.  State,  .33  Ohio  St.  27,  32. 

3  In  7  Coke,  17b,  it  is  laid  down  that  infidels — and  by  this  he  means 
all  persons  not  Christians  (see  opinion  of  Lord  Chief  Justice  Willes 
in  Oniychiind  v.  Barlver,  1  Atk.  21,  43)— have  no  standing  in  the 
English  courts ;  but  this  doctrine  was  exploded  as  early  as  1739, 
when  it  was  held  in  the  case  of  Omychund  v.  Barker  that  the  tes- 
timony of  three  witnesses  whose  depositions  had  been  taken  under 
oath  administered  in  accordance  with  the  Gentoo  religion  should  be 
received.  Lord  Chief  Justice  Willes  there  says  (page  45) :  "There 
is  nothing  in  the  argument  that,  as  Christianity  is  the  law  of  Bug- 
land,  no  other  oath  is  consistent  with  it ;  and,  for  the  reasons 
already  given,  this  argument  carries  no  weight  with  it.  Though  I 
have  shown  that  an  infidel  cannot  be  excluded  from  being  a  wit- 
ness, and  though  I  am  of  opinion  that  infidels  who  believe  in  a  God, 
and  future  rewards  and  punishments  in  the  other  world,  may  be 
witnesses,  yet  I  am  as  clearly  of  opinion  that  if  they  do  not  be- 
lieve in  a  God,  or  future  rewards  and  punishments,  they  ought  not 
to  be  admitted  as  witnesses."  It  is  evident  from  this  that  at  that 
time  the  courts  had  found  no  way  to  admit  the  testimony  of  atheists. 

m'kelv.ev.(2d  ED.)— 23 


354  WITNESSES.  (Ch.  12 

whose  members  refused  to  take  the  oath,  some  little  difficulty 
was  experienced  in  bringing  them  within  the  rule  of  compe- 
tency; so  much,  in  fact,  that  a  special  statute  was  required  to 
extend  them  this  privilege.*  But  this  did  not  extend  their 
competency  to  criminal  cases.  Later,  however,  all  restriction 
was  removed,  and  a  form  of  affirmation  established  for  any 
person  not  competent  or  not  desiring  to  take  the  oath.^  In 
the  United  States  statutory  provisions  abolishing  incompetency 
by  reason  of  religious  opinion  or  the  lack  of  it  are  quite  gen- 
eral.® 

The  general  rule  is  to  swear  the  witness  under  that  oath 
or  ceremony  which,  according  to  the  tenets  of  his  religion  or 
belief,  he  considers  binding  upon  his  conscience.'^  The  religious 
belief  of  a  person  may  be  shown,  to  affect  his  credibility.  It 
was  urged  in  an  early  Massachusetts  case  that  the  fact  that 
the  witness  was  a  Roman  Catholic,  and  therefore  might  tes- 
tify what  was  not  true,  in  expectation  of  absolution  upon  sub- 
sequent religious  confession,  could  be  shown  for  the  purpose 
of  weakening  the  force  of  his  testimony ;  but  the  court  refused 
to  allow  proof  or  argument  of  these  matters,  and  held  there 
was  no  difference  in  religious  beliefs,  which  the  law  recog- 
nized, in  this  respect.®     This,  however,  is  not  the  prevailing 


4  St.  7  &  8  Wm.  Ill,  c.  34,  allowed  Quakers  to  affirm  where 
other  persons  were  required  to  take  the  oath. 

5  St.  31  &  32  Vict.  c.  68. 

0  In  New  York  the  removal  of  any  religious  Qualification  was  final- 
ly accomplished  by  constitutional  provision  (Const.  1847,  art.  1,  § 
3),  to  the  effect  that  "no  person  shall  be  rendered  incompetent  to  be 
a  witness  on  account  of  his  opinions  on  matters  of  religious  belief." 

7  State  V.  Chyo  Chiagk,  92  Mo.  395,  4  S.  W.  704.  This  was  trial 
of  defendant  for  murder.  A  Chinaman  was  placed  on  the  stand  and 
sworn  by  the  usual  oath.  The  court  held  it  was  error,  and  the 
oath  should  have  been  that  of  his  religion,  which  was  to  have  wit- 
ness take  a  "josh  stick"  in  his  hand  and  swear  by  it.  .Jewish  oath : 
Newman  v.  Newman,  7  N.  J.  Eq.  26.  In  Bow  v.  People,  160  111. 
438,  43  N.  E.  593,  the  court  held  it  was  not  error  for  the  witnesses 
to  be  sworn  according  to  the  Chinese  chicken  oath.  See,  also.  State 
V.  Lu  Sing  (Utah)  85  Pac.  521. 

8  Com.  V.  Buzzell,  16  Pick.  (Mass.)  153,  156.  In  reference  to  this 
point,  the  court  say:  "We  think  it  entirely  objectionable.  You 
might  as  well  argue  upon  the  effect  of  any  other  particular  doctrine. 
For  instance,  if  the  witness  belongs  to  a  sect  which  holds  that  the 


§  214)  PARTIES   TO   THE    SUIT.  355 

doctrine,  and  it  is  quite  generally  held  that  cross-examination 
may  extend  to  a  witness'  religious  opinion,  and  argument  be 
made  to  the  jury  as  to  its  effect  on  his  credibility.® 

The  oath  may  be  waived  by  consent  and  the  testimony  will 
be  taken.^** 


PARTIES  TO  THE  SUIT. 

214.  Parties  to  the  suit  may  testify  in  botli  civil  and  crim- 
inal cases  in  this  country.  In  England  they  may  tes- 
tify in  civil  cases,  but  accused  persons  in  criminal 
trials  are  incomiietent  as  VT'itnesses. 

The  old  rule  as  to  the  incompetency  of  parties  to  the  suit  to 
be  witnesses  was  founded  upon  the  prejudice  supposed  to  ex- 
ist on  account  of  personal  interest  in  the  result.  At  the  pres- 
ent day  it  has  been  entirely  abolished,  except  in  the  one  case 
of  an  accused  person  upon  trial  for  the  crime  charged  against 
him ;  and  this  exception  only  exists  in  England.  In  the  United 
States  there  is  no  difference  made  between  civil  and  criminal 
cases.    Parties  to  either  may  testify  without  restriction.    There 

duration  or  extent  of  future  punishment  will  be  less  than  it  will 
be  according  to  the  tenets  of  a  different  sect,  you  might  argue  that 
his  testimony  is  not  entitled  to  so  much  confidence  as  it  would  be  if 
he  belonged  to  the  latter  sect.  Such  course  of  argument  cannot  be 
permitted." 

9  Blair  v.  Seaver,  26  Pa.  274,  where  it  is  said :  "It  is  for  the  jury 
to  say  whether  the  credibility  of  the  witness  is  affected  by  his 
belief  in  the  extent  of  the  penalty  to  be  incurred  by  false  swearing 
or  his  want  of  belief  in  the  Christian  religion;  and  in  Stanbro  v. 
Hopkins,  28  Barb.  (N.  Y.)  2G5,  it  was  held  that  a  witness  could  be 
cross-examined  as  to  the  facts  of  his  religious  belief  for  the  pur- 
pose of  affecting  his  credibility.  To  the  same  effect  is  Free  v. 
Buckingham.  59  N.  H.  219.  But  see,  contra,  as  to  eliciting  facts  by 
cross-examination,  Searcy  v.  Miller,  57  Iowa,  613,  618,  10  N.  W. 
912,  though  this  case  held  that  peculiarities  of  religious  belief  might 
be  shown  to  affect  the  witness'  credibility. 

10  People  ex  rel.  Niebuhr  v.  McAdoo,  184  N.  T.  304,  77  N.  E.  260. 
It  was  held  here  that  where  a  person  testified  without  having  the 
oath  administered  to  him,  and  this  fact  must  have  been  known 
to  defendant,  and  counsel  for  defendant  cross-examined,  the  judg- 
ment would  not  be  disturbed.  The  court  said:  "It  is  a  well-set- 
tled principle  of  law  that  no  evidence  can  be  permitted  to  go  to  the 
jury,  unless  under  oath,  without  express  or  implied  consent." 


356  WITNESSES.  (Ch.  12 

seems  never  to  have  been  generally  established  in  the  United 
States  a  rule  of  exclusion  on  the  ground  of  interest/^  There 
are  statutory  provisions  in  most  of  the  states  relating  to  the 
subject  ^^  but  they  do  not  seem  to  have  changed  the  common- 
law  rule.  In  England  the  practice  was  changed  by  express 
statutory  provision,^^  but  never  extended  to  criminal  cases.^* 


HUSBAND    OR    AVIFE    OF   PARTY. 

215.  The  husband  or  wife  of  a  party  may  testify  in  all  cases 
\irhere  the  party  himself  is  competent,  but  cannot 
disclose  private  or  confidential  conversations  and  com- 
munications. 

Certain  subjects  involving  the  marital  relations  have  been 
excepted  from  the  general  rule  above  stated.  This  is  usually 
by  statutory  provision.^ ^     Except  as  to  such  matters,  and  as 

11  The  rule  as  laid  down  by  Greenleaf  (1  Greenl.  Ev.  327)  was 
founded  on  the  English  common-law  rule,  rather  than  on  any  general 
basis  found  for  it  in  the  American  cases. 

12  See  Pub.  St.  Mass.  c.  169,  §  18.  A  statutory  provision  like 
that  of  Massachusetts  or  that  in  New  York  is  quite  common.  The 
latter  is  as  follows :  "Except  as  otherwise  specially  prescribed  in 
this  title,  a  person  shall  not  be  excluded  or  excused  from  being  a 
witness  by  reason  of  his  or  her  interest  in  the  event  of  an  action  or 
special  proceeding;  or  because  he  or  she  is  a  party  thereto,  or  the 
husband  or  wife  of  a  party  thereto,  or  of  a  person  in  whose  behalf 
an  action  or  special  proceeding  is  brought,  prosecuted,  opposed,  or 
defended."     Code  Civ.  Proc.  N.  Y.  §  828. 

13  St.  9  &  10  Vict.  c.  05,  §  83;    St.  14  &  15  Vict.  c.  99,  §  2. 

14  Reg.  V.  Payne,  L.  R.  1  Crown  Cas.  349,  3r)5 ;  Steph.  Dig.  Bv. 
art.  108.  The  case  of  Reg.  v.  Payne  decided  that  one  jointly  indicted 
with  others  could  not  be  a  witness  for  or  against  his  confederates 
upon  a  trial  of  all  for  the  same  offense. 

i''iThe  provision  in  New  York  is  to  the  effect  that  "a  husband  or 
wife  is  not  competent  to  testify  against  the  other  upon  the  trial  of 
an  action  or  the  hearing  upon  the  merits  of  a  special  proceeding 
founded  upon  an  allegation  of  adulter>%  except  to  prove  the  mar- 
riage or  disprove  the  allegation  of  adulteiy.  A  husband  or  wife 
shall  not  be  compelled,  or  without  the  consent  of  the  other,  if  living, 
allowed,  to  disclose  a  confidential  communication  made  by  one  to 
the  other  during  marriage.  In  an  action  for  criminal  conversation, 
the  ])laintifif's  wife  is  not  a  competent  witness  for  the  plaintiff,  but 
she  is  a  competent  witness  for  the  defendant,  as  to  any  matter  in 


§  215)  HUSBAND   OR    WIFE   OF    PARTY.  357 

to  private  and  confidential  communications,  a  husband  or 
wife  of  a  party  is  competent  as  a  witness  for  or  against  the 
other.  The  old  rule,  which  excluded  the  husband  or  wife  of 
a  party,  had  for  its  object  "that  the  most  entire  confidence 
may  exist  between  them,  and  that  there  may  be  no  apprehen- 
sion that  such  confidence  can  at  any  time,  or  in  any  event,  be 
violated — so  far,  at  least,  as  regards  any  testimony  or  dis- 
closure in  a  court  of  justice."  ^'^  It  may  be,  too,  that  som.e- 
thing  lay  in  the  idea  of  preventing  that  friction  and  disagree- 
ment between  husband  and  wife  which  would  necessarily  arise 
from  the  one  giving  testimony  against  the  other. ^^  The  dis- 
qualification in  general  has  disappeared,  through  more  liberal 
treatment  of  the  subject  in  the  cases, ^^  or  by  statutory  provi- 


controversy.  except  that  she  cannot,  without  the  plaintiff's  consent, 
disclose  any  confidential  communication  had  or  made  between  herself 
and  the  plaintiff."  Code  Civ.  Proc.  §  831;  Colwell  v.  Colwell,  14 
App.  Div.  80.  43  N.  Y.  Supp.  439.  This  is  a  fair  sample  of  the  stat- 
utory law  relating  to  the  subject.  See,  also,  Hanselman  v.  Dovel, 
102  ]\Iich.  505,  GO  N.  W.  978,  47  Am.  St.  Rep.  557. 

16  Per  James,  J.,  in  Chamberlain  v.  People,  23  N.  Y.  85,  89,  80 
Am.  Dec.  255.  See,  also,  for  explanation  and  qualification  of  the  old 
rule,  Ratcliff  v.  Wales,  1  Hill  (N.  Y.)  63;  Dickerman  v.  Graves,  6 
Cush.  (Mass.)  308,  53  Am.  Dec.  41.  It  was  held  that  divorce  made 
the  husband  and  wife  competent  to  testify  for  one  another,  and  that 
the  rule  in  this  respect  applied  only  during  the  existence  of  the 
marriage  relation. 

IT  Tiudal,  C.  J.,  says  in  O'Connor  v.  Majoribanks,  4  Man.  &  G. 
435 :  "A  wife  never  can  be  admitted  as  a  witness  against  her  hus- 
band. She  cannot  be  a  witness  for  him,  because  her  interest  is  pre- 
cisely identical  with  his;  nor  against  him,  upon  grounds  of  public 
•policy,  because  the  admission  of  such  evidence  would  lead  to  dissen- 
sion and  unhappiuess,  and  possibly  to  perjury." 

IS  Appeal  of  Robb.  98  Pa.  501.  "On  the  whole,  the  prevailing 
tendency  of  late  years,  in  both  England  and  America,  is  to  regard 
the  domestic  confidence  or  the  ties  of  a  spouse  as  of  little  con- 
sequence compared  with  the  public  conveniences  of  extending  the 
means  of  ascertaining  the  truth  in  all  cases;  such  facilities  being 
increased,  it  is  believed,  by  hearing  what  each  one  has  to  say,  and 
then  making  due  allowance  for  circumstances  affecting  each  one's 
credibility."  But  see  Ileckman  v.  Ileckman,  215  Pa.  203,  64  Atl. 
425,  where  the  common-law  rule  is  hold  to  prevail,  except  where 
statutory  provision  has  removed  the  disability.  Schouler,  Hush.  & 
W.  85. 


358  WITNESSES.  (Ch.  12 

sion.^*  The  English  rule  put  the  husband  or  wife  of  a  party 
on  the  same  footing  with  the  party  himself,  and  accordingly, 
in  criminal  cases,  never  extended  the  rule  of  competency  to 
include  them.^"  There  was  an  early  exception  to  the  rule 
which  held  the  testimony  of  husband  or  wife  incompetent, 
and  that  was  where  the  trial  on  which  the  testimony  was  offer- 
ed was  for  a  crime  committed  by  the  one  against  the  other. 
Necessity  compelled  the  relaxation  of  the  rule  in  this  case.-^ 


PERSONS   PECUNIARIIiY  INTERESTED. 

216.    Pecuniary  interest  no  longer  disqualifies  a  witness  from 
testifying. 

Originally  persons  pecuniarily  interested  in  the  suit  were 
not  permitted  to  testify.-^  This,  however,  has  been  entirely 
changed,  except  with  respect  to  a  witness,  or  a  husband  or 
wife  of  a  witness,  to  a  will,  who  is  also  a  beneficiary  under  the 
will.    This  has  been  said  to  be  the  "sole  survival  of  the  numer- 

19  Pub.  St.  Mass.  c.  169,  §  18;  Code  Civ.  Proc.  N.  Y.  §  831 ;  West- 
erman  v.  Westenuan,  25  Ohio  St.  500,  507;  People,  v.  Langtree, 
64  Cal.  256,  30  Pac.  813.  But  tliere  is  still  a  survival  of  the  old 
adea  in  the  exception  as  to  private  and  confidential  matters.  Here 
the  disqualification  still  exists  in  all  its  force.  It  is  one  which 
follows  the  person  even  after  the  dissolving  of  the  marriage  relation 
by  divorce,  for,  to  quote  the  language  of  an  old-time  jurist:  "Mis- 
erable, indeed,  would  the  condition  of  a  husband  be  if,  when  a 
woman  is  divorced  from  him,  perhaps  for  her  own  misconduct,  all 
the  occurrences  of  his  life,  intrusted  to  her  while  the  most  \m- 
bounded  confidence  existed  between  them,  should  be  divulged  in  a 
court  of  justice."  There  is  some  difference  in  the  construction  put 
upon  the  term  "confidential,"  as  used  in  connection  with  this  sub- 
ject, and  a  distinction  is  sometimes  made  between  confidential  mat- 
ters and  private  matters,  the  exception  being  construed  to  apply  to 
the  former  only.  Examination  of  the  statutes  and  their  interi^reta- 
tion  by  the  courts  in  the  different  jurisdictions  must  be  made  in  each 
instance  where  the  question  arises, 

2  0  steph.  Dig.  Ev.  art.  108;  Reg.  v.  Thompson,  L.  R.  1  Crown 
Cas.  377. 

21  Steph.  Dig.  Ev.  art.  108. 

22  In  Bent  v.  Baker,  3  Term  R.  27,  36,  Buller,  J.,  defined  the  rule 
of  exclusion  on  the  ground  of  interest  to  be  whether  "the  witness 
is  to  gain  or  lose  by  the  event  of  the  cause." 


§  217)  NATURALLY   INCAPACITATED   PERSONS.  359 


S 


ous  exclusionary  rules  making  witnesses  incompetent  by  rea- 
son of  relationship  or  pecuniary  interest."  -^ 

To-day  a  person  interested  in  the  outcome  of  a  suit  is  al- 
lowed to  testify  the  same  as  a  disinterested  person;  but  the 
adverse  party  may  show  by  cross-examination  the  nature  and 
extent  of  that  interest  as  affecting  the  credibility  of  the  wit- 


ness.^* 


There  has,  however,  been  a  certain  revival,  if  not  survival, 
of  the  disqualifying  rule  in  certain  instances,  where  the  sub- 
ject of  the  testimony  consists  of  transactions  with  a  person 
since  deceased  or  insane.  Here  it  is  quite  generally  provided 
by  statute  that  a  person  interested  is  incompetent  to  testify 
in  an  action  against  the  executor,  administrator,  or  committee 
of  such  person.^"^ 

NATURALLY  INCAPACITATED  PERSONS. 

217.  A  person  incapacitated  to  sncli  an  extent  tliat  lie  is 
unable  to  understand  tlie  subject  in  reference  to  wbicli 
he  is  called  as  a  \iritness  is  incompetent. 

Naturally  incapacitated  persons  were  not  permitted  to  testify. 
This  rule  has  always  existed,  and  exists  to-day.  It  is  rather 
a  rule  of  necessity  than  anything  else.    Insane  persons,^'  per- 

23  Best,  Ev.  (Chamberlain  Int.  Ed.)  p.  178,  note. 

24  Sharp  V.  Railroad  Co.,  184  N.  Y.  100,  76  N.  E.  923.  The  rail- 
road was  sued  for  damages  sustained  by  reason  of  the  negligence  of 
the  servants  of  the  road.  A  servant's  testimony  will  be  received, 
although  it  is  shown  that  the  witness  is  interested  in  the  outcome. 
The  credibility  of  the  witness  is  for  the  jury. 

2  5  Rev.  St.  U.  S.  §  8.58  [U.  S.  Comp.  St.  1901,  p.  Go9] ;  Code  Civ. 
Proc.  N.  Y.  §  829;  Richardson  v.  Emmett,  170  N.  Y.  412,  63  N.  E. 
440.  See,  also,  Sparbawli  v.  Sparhawk,  10  Allen  (Mass.)  155;  Suth- 
erland V.  Ross,  140  Pa.  379,  21  Atl.  35-1;  Russell  v.  Russell  (C.  C.) 
129  Fed.  434;  Code  Civ.  Proc.  Neb.  §  829.  In  re  McCoy's  Will,  64 
Neb.  150.  89  N.  W.  665.  But  even  an  interested  person,  barred  for 
this  reason,  may  testify  as  an  expert.  Hoag  v.  Wright,  174  N.  Y. 
36,  66  N.  E.  579,  63  L.  R.  A.  163. 

26  In  Livingston  v.  Kiersted,  10  Johns.  (N.  Y.)  362,  the  plaintiff 
called  a  witness,  and  the  defendant  thereupon  offered  to  show  tluit 
the  witness  was  "non  compos,  and  that  he  had  been  for  some  time 
deranged."     The  judge  refused  to  allow  this  to  be  done.     The  court 


360  WITNESSES.  (Ch.  12 

sons  too  young  to  understand, ^"^  or  persons  temporarily  inca- 
pacitated by  drink,^^  are  none  of  them  considered  competent  to 
testify.  With  respect  to  insane  persons,  there  is  no  absolute 
rule  which  excludes  them  on  the  mere  ground  of  insanity. 
The  insanity  must  be  shown  to  affect  their  understanding  at 
the  time  of  their  being  called  as  witnesses,  in  order  to  render 
them  incompetent.^^  There  is  a  distinction  to  be  noted  be- 
tween insanity  at  the  time  of  the  trial,  insanity  at  the  time  of 
the  transaction  about  which  the  witness'  testimony  is  offered, 
and  insanity  at  some  other  period.  In  the  first  case  the  witness 
is  rendered  incompetent  to  testify ;  in  the  second,  he  is  not 
incompetent,  but  his  condition  at  the  time  of  the  transaction 
may  be  proved,  to  affect  his  credibility ;  ^^  in  the  third  case 
the  insanity  has  no  effect,  and  is  irrelevant.  There  is  no  defi- 
nite rule  as  to  the  age  at  which  a  person  is  qualified  to  testify. 
The  test  has  always  been  an  individual  one,  whether  in  the 
particular  case  the  person  offered  has  sufficient  intelligence  to 
understand  the  nature  and  effect  of  an  oath.^^     There  is  some 

reversing  the  judgment,  on  appeal,  said :  "Idiots,  limatics,  and  mad 
men  are  not  competent  witnesses,  and  this  must  be  shown  to  the 
court  by  proof,  like  any  other  charge  of  incompetency." 

2  7  Hughes  V.  Railway  Co.,  G5  Mich.  10,  31  N.  W.  603;  Carter  v. 
State,  63  Ala.  52,  3.5  Am.  Rep.  4. 

2  8  Hartford  v.  Palmer,  16  Johns.  (N.  Y.)  143;  Gould  v.  Craw- 
ford, 2  Pa.  89. 

2  9  District  of  Columbia  v.  Arms,  107  U.  S.  519,  2  Sup.  Ct.  840, 
27  L.  Ed.  018;  Coleman  v.  Com.,  25  Grat.  (Va.)  865,  23  Am.  Rep.  711. 
See  note  to  People  v.  New  York  Hospital,  3  Abb.  N.  C.  (N.  Y.)  229, 
In  Coleman  v.  Com.,  supra,  it  is  said  (page  875  of  25  Grat.) :  "It 
will  be  seen,  then,  that  a  witness  is  not  excluded  by  this  rule  merely 
because  he  is  a  lunatic.  That  is  not  enough  per  se  to  exclude  him ; 
but  he  must  at  the  time  of  his  examination  be  so  under  the  in- 
lluence  of  his  malady  as  to  be  deprived  of  that  'share  of  imderstaud- 
ing'  which  is  necessary  to  enable  him  to  retain  in  memory  the  events 
of  which  he  has  been  a  witness,  and  gives  him  a  knowledge  of 
right  and  wrong."     Lee  v.  State,  43  Tex.  Cr.  R.  285,  64  S.  W.  1047. 

3  0  Holcomb  V.  Holcomb,  28  Conn.  177. 

31  1  East,  P.  C.  441.  In  Wheeler  v.  U.  S.,  159  U.  B.  .523.  10  Sup. 
Gt.  93,  40  L.  Ed.  244,  it  was  held  it  was  not  error  to  admit  the 
testimony  of  a  boy  five  years  old.  Mr.  Justice  Brewer  says  (page 
.524.  1.59  U.  S.,  and  page  93,  16  Sup.  Ct.  [40  L.  Ed.  244]):  "That 
the  boy  was  not  by  reason  of  his  youth,  as  a  matter  of  law,  abso- 
lutely disqualified  as  a  witness,  is  clear.  While  no  one  would  think 
of  calling  as  a  witness  an  infant  only  two  or  three  years  old,  there 


§  218)  I'ERSONS   GUILTY    OF   CRIME.  3G1 

mention  made  of  an  early  practice  of  receiving  the  statement 
of  a  child  without  the  administration  of  the  oath  in  a  case  of 
extreme  youth,  but  it  is  not  likely  that  this  ever  prevailed  to 
any  extent.^-  The  question  of  whether  a  person  has  sufficient 
capacity  to  testify  is  a  cjuestion  of  fact  for  the  judge  to  de- 
cide, and  he  may  hear  testimony  on  the  point,  as  well  as  ex- 
amine the  person  himself.' 


33 


PERSONS    GUILTY    OF    CRIME. 

218.    Conviction    of    crime    is    no    longer    a    disiiualifi cation. 
The    testimony    of    a    criminal    is    admissible,    but    liis 
previous  conviction  can  be  sbown,   to  affect  bis  credi- 
bility. 

At  the  common  law,  persons  who  had  been  convicted  of  in- 
famous crimes  were  incompetent  as  witnesses.  Infamous 
crimes,  in  a  general  way,  may  be  defined  as  those  punishable 
by  imprisonment  in  state's  prison.  Just  what  was  included 
in  the  term  at  common  law  is  probably  a  matter  of  uncer- 
tainty. The  exact  limits  were  not  accurately  defined.^*  Thi? 
disqualification  has  been  abolished  by  statutes  declaratory  of 
the  more  liberal  views  of  the  courts  with  respect  to  wit- 
nesses.^^    The  matter   of   conviction   may,   however,   still  be 

is  no  precise  age  which  determines  the  question  of  competency.  This 
depends  on  the  capacity  and  intelligence  of  the  child,  his  apprecia- 
tion of  the  difference  between  truth  and  falsehood,  as  well  as  of  his 
duty  to  tell  the  former."  See,  also,  State  v.  Sawtelle,  G6  N.  H.  488, 
490'.  502,  32  Atl.  831;  State  v.  Nelson,  132  Mo.  184,  197,  33  S.  W. 
809 :  Featherstone  v.  People,  194  111,  325,  G2  N.  E.  684 ;  North  Texas 
Const.  Co.  V.  Bostick  (Tex.  Civ.  App.)  80  S.  W.  109. 

In  Shannon  v.  Swanson,  208  111.  52,  69  N.  E.  869,  a  boy  seven  years 
old  was  allowed  to  testify.  "Intelligence  and  ability  to  comprehend 
the  meaning  of  an  oath,  and  the  moral  obligation  to  speak  the  truth, 
and  not  age,  are  the  tests  by  which  the  competency  of  a  child  to 
give  testunony  is  determhied."  ^     _  , 

32  1  East,  P.  C.  441,  444.    And  see  note  in  Thayer,  Cas.  Ev.  ("J  "  .  > 

^'33  Wheeler  v  U.  S.  159  U.  S.  523,  16  Sup.  Ct.  93,  40  L.  Ed.  244; 
Com  V  Lynes,  142  Mass.  577.  581.  8  N.  E.  408,  .56  Am.  Rep.  709; 
Colemiui  v.  Com.,  25  Grat.  (Va.)  865,  23  Am.  Kep.  711;  State  v. 
Levy.  23  Minn.  104.  23  Am.  Rep.  678. 

34  1  Greenl.  Ev.  §  378. 

3  5  See,  for  illustration,  Code  Civ.  Proc.  N.  Y.  §  832. 


362  WITNESSES.  (Ch.  12 

shown,  as  affecting  the  credibility  of  the  witness.  During  the 
existence  of  the  disquaHfication  it  was  held  that  "conviction" 
meant  not  only  the  verdict  of  the  jury,  but  the  actual  judg- 
ment of  the  court.  This  interpretation  has  survived,  and  now 
obtains  in  respect  to  the  proof  of  the  conviction  allowed  to 
affect  credibility.^* 


CERTAIN  SPECIAL   CASES   OF   DISQUALIFICATION. 

219.    There    are    certain    special    cases    in   xpliicli    disqualifica- 
tion exists,  among  \i^liicli  are: 

(a)  Grand  jurors   and  petit   jurors,   as   to  irhat   took  place 

in  the  jury  room. 

(b)  Legal  advisers,  as  to  information  received  from  or  ad- 

vice  given    to    a    client    in    the    course    of    employment. 

(c)  A  judge  in  the  trial  at  which  he  is  presiding. 

(d)  Physicians    and    clergymen    as    to    information    acquired 

in  a  professional  capacity. 

Jurors. 

The  authorities  hold  generally  that  neither  grand  nor  petit 
jurors  can  disclose  what  takes  place  before  them  in  the  jury 
room.^^  There  are  certain  qualifications  to  this  doctrine  which 
have  been  recognized  in  the  cases.  In  a  case  for  malicious 
prosecution  it  has  been  held  that  a  grand  juror  could  testify 
who  was  the  prosecutor  before  the  grand  jury.^^  On  indict- 
ments for  perjury  a  grand  juror  is  permitted  to  show  that  the 
testimony  of  the  accused  is  inconsistent  with  that  given  by  him 
before  the  grand  jury.^^     It  is  probable  that  in  any  proceed- 

36  People  V.  McGloin,  91  N.  Y.  241,  249;  Com.  v.  Gorham,  99  Mass. 
420. 

37  1  Greenl.  Ev.  §  2.52;  State  v.  Fasset,  16  Conn.  457;  Lindauer 
V.  Teeter,  41  N.  J.  Law,  255.  In  People  v.  Hulbut  4  Deulo  (N.  Y.) 
133,  47  Am.  Dec.  244,  the  defendant  offered  to  show  by  the  testimony 
of  one  of  the  grand  jurors  that  there  was  no  evidence  placed  bef  l  re 
the  grand  jury  of  offenses  charged  in  the  indictment.  It  was  hold 
that  the  grand  juror  was  incompetent  to  testify  as  to  what  took 
place  in  the  grand  jury  room. 

3  8  Sykes  v.  Dunbar,  2  Selw.  N.  P.  1091;  Huidekoper  v.  Cot- 
ton, 3  Watts  (Pa.)  5G. 

3i<  See  opinion  of  Bronson,  C.  J.,  in  People  v.  Hulbut,  4  Denio 
(N.  Y.)  133,  185,  47  Am.  Dec.  244. 


219)  CASES   OF    DISQUALIFICATION. 


3G3 


ing  where  the  regularity  of  the  proceedings  of  grand  jurors  or 
petit  jurors  was  properly  called  in  question,  or  fraud  charged 
in  their  performance  of  their  functions,  they  would  be  allowed 
to  testify.""  It  is  also  held  that,  in  cases  where  it  is  sought 
to  impeach  a  witness'  credibility,  a  grand  juror  may  disclose 
what  the  witness'  testimony  was  before  the  grand  jury,  to  show 
that  it  differed  from  his  testimony  at  the  trial.*^ 

Legal  Advisers. 

The  disqualification  of  an  attorney  with  respect  to  com- 
munications between  himself  and  a  client  is  absolute,  whether 
the  matter  be  sought  to  be  used  against  the  client  or  against 
a  third  party.* ^  But  it  does  not  extend  to  communications 
made  in  furtherance  of  any  criminal  purpose,  or  any  fact  ob- 
served showing  that  a  crime  or  fraud  has  been  committed 
since  his  employment,  or  any  fact  which  the  legal  adviser  be- 

40  For  example,  affidavits  of  jurors  have  been  received  on  a  mo- 
tion to  correct  a  verdict  whiich  was  wrongly  announced,  by  mistake 
on  the  part  of  the  foreman.  Dalrymple  v.  Williams,  63  N.  Y.  361. 
20  Am.  Rep.  544.  See,  also,  Woodward  v.  Leavitt,  107  Mass.  453, 
458,  9  Am.  Rep.  49.  But  that  a  juror  has  made  statements  in  the 
jury  room  of  his  own  knowledge,  or  that  he  has  misunderstood  in- 
structions, or  has  had  some  improper  motive,  is  not  allowed  to  be 
shown  in  an  attack  on  a  verdict.  St.  Louis  S.  W.  R.  Co.  of  Texas 
V.  Ricketts,  96  Tex.  68,  70  S.  W.  315;  Mattox  v.  United  States, 
146  U.  S.  140,  13  Sup.  Ct.  50,  36  L.  Ed.  917.  On  a  motion  to  quash 
an  indictment,  because  it  was  not  legally  found,  the  testimony  of 
grand  jurors  has  been  admitted  to  show  that  12  of  the  jury  con- 
curred in  finding  the  indictment.  Low's  Case,  4  Me.  439,  447,  16 
Am.  Dec.  271 ;  People  v.  Shattuck,  6  Abb.  N.  C.  (N.  Y.)  33 ;  Com.  v. 
Green,  126  Pa.  531,  17  Atl.  878,  12  Am.  St.  Rep.  891.  See,  also, 
Hinshaw  v.  State,  147  Ind.  334,  47  N.  E.  157. 

The  reasons  for  keeping  secret  the  grand  jury's  proceeding  have 
been  stated  as  follows:  "First,  to  insure  free  disclosures  to  and 
discussion  by  the  grand  jury ;  secondly,  to  prevent  perjury  and  sub- 
ornation of  perjury ;  thirdly,  to  prevent  the  escape  of  the  accused 
by  keeping  the  indictment  secret."  11  Harvard  Law  Rev.  198,  cit- 
ing Com.  V.  Mead,  12  Gray  (Mass.)  107,  71  Am.  Dee.  741. 

41  State  V.  Wook,  53  N.  H.  484;  Gordon  v.  Com.,  92  Pa.  216,  37 
Am.  Rep.  672.  And  see  New  Hampshire  Fire  Ins.  Co.  v.  Healey, 
151  Mass.  537,  24  N.  E.  913. 

42  Connecticut  Mut.  Life  Ins.  Co.  v.  Schaefer,  94  U.  S.  457,  24  L. 
Ed.  251 ;  Bacon  v.  Frisbie,  80  N.  Y.  394,  36  Am.  Rep.  627 ;  Higbee 
V.  Dresser,  103  Mass.  523. 


364  WITNESSES.  (Ch.  12 

came  acquainted  with  apart  from  his  character  as  such.*^ 
The  cases  hold  that  it  is  never  a  part  of  a  legal  adviser's  busi- 
ness to  advise  or  act  in  furtherance  of  a  criminal  purpose,  and 
that,  "as  soon  as  a  legal  adviser  takes  part  in  preparing  for 
a  crime,  he  ceases  to  act  as  a  lawyer  and  becomes  a  crim- 
inal." **  The  subject  of  an  attorney's  testimony  as  to  his  cli- 
ent's affairs  must  be  treated  from  two  standpoints:  (1)  As  a 
disqualification  on  the  part  of  the  attorney,  and  (3)  a  privilege 
on  the  part  of  the  client.  It  will  be  discussed  more  fully  from 
the  standpoint  of  privilege.*^  It  is  to  be  observed,  however, 
that  the  disqualification  of  an  attorney  extends  only  to  matters 
between  himself  and  his  client,  and  that  there  is  no  general  dis- 
qualification which  prevents  an  attorney  in  the  cause  from 
being  a  witness.  It  was  in  early  times  contended  that  such 
disqualification  existed,  but  later  cases  dispelled  the  idea.*'^ 
Many  states  have  statutes  governing  this  point.*'' 

Judges. 

The  disqualification  of  a  judge  is  complete,  so  far  as  the  trial 
in  which  he  is  presiding  is  concerned.  There  are  duties  which 
are  imposed  upon  him  in  respect  to  the  witnesses  in  the  case 
which  would  produce  embarrassing  complications  were  he 
himself  a  witness.  A  judge  passing  upon  the  competency  of 
his  own  testimony,  if  objections  were  interposed,  determining 
its  materiality,  overruling  or  sustaining  motions  to  strike  it 
out,  and  deciding  questions  relating  to  his  privileges  as  a 
witness,   and  to  the   impeachment  by  other  witnesses  of  his 

4  3  Brown  v.  Foster,  1  Hurl.  &  N.  736. 

44  Steph.  Dis.  Ev.  art.  115. 

4  5  Post,  pp.  381,  382. 

46  2  Tayl.  Ev.  §  1240 :  Wilson  v.  Grove,  Toth.  177 ;  Potter  v.  Ware, 
1  Cush.  (Mass.)  519;  Follansbee  v.  Walker,  72  Pa.  228,  13  Am.  Rep. 
671. 

4T  Code  Civ.  Proc.  N.  Y.  §  835.  is  an  illustration  of  this  kind  of 
protection.  "An  attorney  or  counselor  at  law  shall  not  be  allowed 
to  disclose  a  communication,  made  by  his  client  to  him,  or  his  ad- 
vice given  thereon,  in  the  course  of  his  professional  employment, 
nor  shall  any  clerk,  stenographer,  or  other  person  employed  by  such 
attorney  or  counselor  be  allowed  to  disclose  any  such  commiuiicntion 
or  advice  given  thereon."  For  interpretation  of  statute,  see  Doheny 
V.  Lacy,  168  N.  Y.  213,  61  N.  E.  255;  People  v.  Patrick,  182  N.  Y. 
331,  175,  74  N.  E.  843. 


§  219)  CASES   OF   DISQUALIFICATION.  3G5 

testimony,  would  be  an  awkward  spectacle.  It  is  accordingly 
held  that  a  judge  is  incompetent  as  a  witness  at  a  trial  presided 
over  by  himself.*^  Where  the  judge  testifies  without  objection 
by  either  party,  it  has  been  held  that  though  erroneous  practice, 
and  to  be  severely  condemned,  it  does  not  deprive  the  trial 
court  of  jurisdiction.*^  The  disqualification  of  a  judge  does 
not  extend  to  matters  concerning  trials  had  before  him,  if  he  is 
called  as  a  witness  in  another  proceeding.  He  may  testify 
to  all  matters  of  fact  as  to  the  conduct  of  the  trials.^"  And 
it  has  also  been  held,  where  judgments  are  given  in  an  in- 
formal manner  in  petit  courts,  and  it  subsequently  becomes 
material  to  determine  the  ground  on  which  they  were  render- 
ed, that  the  judge  who  rendered  the  decision  is  competent  to 
testify. ^^  A  referee  or  arbitrator  is  in  the  same  position  as  a 
judge,  so  far  as  disqualification  is  concerned. ^^ 

Physicians  and  Clergymen. 

At  common  law  there  seems  to  have  been  no  restriction 
placed  upon  medical  men  or  clergymen,  with  respect  to  in- 
formation obtained  by  them  when  acting  in  a  professional  ca- 
pacity.^^  By  statute,  however,  in  most  of  the  states,  they  have 
been  conditionally  disqualified,  their  testimony  being  excluded 
unless  consented  to  by  the  person  who  is  affected.^* 

Where  no  provision  is  made  respecting  the  drawing  of  an 

48  People  V.  Miller,  2  Parker,  Cr.  R.  (N.  Y.)  197,  200 :  McMillen  v. 
Andrews,  10  Ohio  St.  112 ;    Dabucy  v.  Mitchell,  6G  Ala.  495. 

4  9  People  V.  Dohring,  59  N.  Y.  .374.  379,  17  Am.  Kep.  349. 

5  0  Huff  V.  Bennett,  6  N.  Y.  337,  340. 

51  Taylor  v.  Larkin,  12  Mo.  103,  49  Am.  Dec.  119.  See,  also, 
statement  in  note  to  Supples  v.  Cannon,  44  Conn.  424,  434.  But 
see,  contra,  as  to  testifying  directly,  as  to  the  ground  on  which  the 
judgment  was  based,  Agan  v.  Hey,  30  Hun  (N.  Y.)  591,  though  it 
is  conceded  that  a  judge  is  competent  to  testify  as  to  what  took  place 
before  him.  See,  also,  Robinson  v.  Railway  Co.,  64  Hun,  41,  18  N. 
Y.  Supp.  728,  where  the  written  opinion  of  the  court  was  excluded 
as  evidence  of  the  groinid  of  the  judgment. 

52  Morss  V.  Morss,  11  Barb.  (N.  Y.)  510. 

53  Steph.  Dig.  Er.  art.  117. 

54  Code  Civ.  Proc.  N.  Y.  §§  833,  834.  and  8.36.  are  illustrations  of 
the  ordinary  statutory  provision  on  this  subject.  For  way  court 
interprets  section  836.  see  In  re  :Myer's  Will.  184  N.  Y.  54,  76  N.  E. 
920 ;  Davis  v.  Knights  of  Honor,  165  N.  Y.  159,  58  N.  E.  801.  "VMiat 
will    constitute   a   waiver.     Holcomb    v.    Harris,    166   N.    Y.   2.57,   59 


366  WITNESSES.  (Ch.  12 

inference  from  the  failure  of  a  person  to  consent  to  his  physi- 
cian testifying,  there  is  some  question  as  to  whether  the  jury 
is  justified  in  drawing  an  inference  unfavorable  to  the  patient, 
and  in  one  case  it  was  directly  held  that  such  inference  might 
be  drawn. ^^ 

On  principle  it  would  seem  as  though  the  rule  against  in- 
ferences ought  to  follow  the  privilege  in  this  as  in  other 
cases. 


PRIVILEGE— DISTINGUISHED  FROM  DISQUALIFICATION. 

220.  A  witness  who  is  disqualified  is  not  permitted  to  testify. 

A  witness  who   is  privileged  is   not   compelled  to   tes- 
tify, hut  may,  if  he  desires,   do  so. 

221.  Privilege   extends,   in   respect   to    certain  persons,   to  all 

subjects,  and,  in  respect  to  all  persons,  to  certain  sub- 
jects. 

Disqualification  of  witnesses  must  be  distinguished  from 
privilege.  There  are  many  cases  where  persons  are  not  dis- 
qualified from  testifying,  but  are  not  compellable  to  testify 
if  they  do  not  choose  to  do  so.  This  is  privilege.  There  are 
many  other  cases,  as  seen  in  the  foregoing  pages,  where  per- 
sons are  not  permitted  to  testify  even  if  they  desire  to  do  so. 
This  is  disqualification.  Privilege,  as  we  find  it  discussed  in 
the  cases,  is  generally  that  which  relates  to  certain  subjects,  and 
which  extends  to  all  persons  alike,  provided  the  necessary 
conditions  are  present.  There  is,  however,  a  form  of  privilege 
which  extends  to  all  subjects  at  all  times.  It  is  possessed 
by  but  one  person,  and  that  is  the  sovereign  of  England.  It 
is  generally  conceded  that  the  sovereign  of  that  country  is 
not  compellable  to  testify  in  the  courts.^^  It  has  been  urged 
that  the  president   of  the  United    States   and   governors   of 

N.  E.  820.     Soe  Colbert  v.  State.  125  Wis.  423.  104  N.  W.  61 ;    Hills 
V.  State,  61  Neb.  589,  85  N.  W.  836,  57  L.  R.  A.  155. 

•"  Deutschmann  v.  Railroad  Ck).,  87  App.  Div.  50.3,  84  N.  Y.  Supp. 

887. 

5  6  Best,  ia  bis  work  on  Evidence  (section  183),  argues  tbat  the 
sovereign  is  not  disqualified  as  a  witness,  but  only  privileged.  See, 
also,  Best,  Ev.  §  125. 


§  220-221)  PRIVILEGE.  3G7 

states  are  in  the  same  position,  but  the  courts  have  refused  to 
so  hold."  Foreign  ministers  are  said  to  be  privileged  from 
testifying  in  the  courts  of  the  country  to  which  they  are  ac- 
credited under  the  rules  of  international  law."^*  There  are  oth- 
er persons  who,  by  reason  of  special  conditions,  become  privi- 
leged as  to  all  subjects  at  certain  times.  Accused  persons  are 
of  this  class.  Though  not  disqualified  from  testifying,  they 
will  not  be  compelled  to  testify  upon  their  own  trials.  Their 
privilege  is  absolute  in  this  respect.  The  English  law,  as  we 
have  already  seen,  places  accused  persons  among  those  who  are 
disqualified.^^  It  is  the  American  rules  of  which  we  are  here 
speaking.  There  are,  in  the  third  place,  under  the  head  of 
"Privilege,"  to  be  considered  those  subjects  which  are  priv- 
ileged from  inquiry  in  the  courts,  and  about  which  any  person 
may  decline  to  testify.  The  matter  of  absolute  privilege  on  all 
subjects  at  all  times,   extending  as  it  does  to  a  single  person, 

5  7  In  the  trial  of  Aaron  Burr,  for  treason  (Fed.  Cas.  No.  14,693), 
Chief  Justice  Marshall  decided  that  the  President  could  be  subpoenaed 
as  a  witness  the  same  as  any  other  person.    He  says  (pages  100  and 
101  in  edition  published  at  Richmond,  1807),  contrasting  the  position 
of  president  with  that  of  sovereign  of  England:    "In  this  respect 
the  first  magistrate  of  the  Union  may  more  properly  be  likened  to 
the  first  magistrate  of  a  state— at  any  rate,  under  the  former  con- 
federation ;    and  it  is  not  known  ever  to  have  been  doubted  that  the 
chief  magistrate  of  a  state  might  be  served  with  a  subpoena  ad  tes- 
tificandum.    If  in  any  court  of  the  United  States  it  has  ever  been 
decided   that    a   subpoena   cannot   issue  to  the   President,   that   de- 
cision is  unknown  to  this  court."     In  the  case  of  State  v.  Johnson. 
4  Wall.   (U.  S.)  475,   18  L.  Ed.  437,  the  question  of  the  President's 
being  amenable  to  process  of  the  court,  including  process  of  subpoena, 
was  very  fully  discussed,  and  Chief  Justice  Marshall's  opinion  com- 
mented on  by  counsel  (see  pages  482  and  493  of  4  Wall.  [18  L.  Ed. 
437]) ;     but   the    court   refused   to  pass   upon   the   point.     With   re- 
spect to  the  privilege  of  Governors  of  states,  the  decisions  hold  that 
they  may  be  subpoenaed,  and  ought  to  appear  and  testify  on  all  sub- 
jects except  state  matters,  which  they  deem  it  for  the  public  interest 
to   withhold.     Yet   if  the   opinion   of   the   court   and   the  Governor 
differ  as  to  any  matter  being  thus  privileged,  or   if  the  Governor 
refuse  to  obey  the  subpoena,  no  attachment  will  be  issued,  for  "it 
might   bring   the  executive   into   conflict   with   the  judiciary."     See 
Thompson  v.  Railroad  Co..  22  N.  J.  Eq.  Ill;    Appeal  of  Hartrauft, 
85  Pa.  433,  27  Am.  Rep.  GG7. 
5  8  Whart.  Ev.  (3d  Ed.)  §  607a. 
5  9  Ante,  p.  355. 


368  WITNESSES.  (Ch.  12 

is  of  small  importance,  and  need  not  be  further  referred  to. 
The  privilege  of  accused  persons  in  respect  to  all  subjects,  and 
that  of  all  witnesses  in  respect  to  certain  subjects,  need  more 
detailed  examination. 


SAME— PRIVILEGE    OF    ACCUSED    PERSONS. 

222.  A  person  accused  of  crime  is  absolutely  privileged  from 
testifying  upon  his  trial  for  the  crime  charged  against 
him. 

When  the  doctrine  as  to  the  exclusion  of  the  testimony  of 
parties  to  the  action  was  changed  so  that  they  became  both  com- 
petent and  compellable  to  testify,  there  was  one  exception  made, 
namely,  that  of  parties  to  criminal  proceedings.  While  extend- 
ing to  them  the  privilege  of  testifying,  neither  courts  nor  legis- 
latures ever  went  to  the  extent  of  making  them  compellable  to 
become  witnesses.**'  Nor  would  a  statute  to  that  effect  be  of 
any  effect,  for  it  would  violate  the  constitutional  provision 
which  protects  any  person  accused  of  crime  from  being  com- 
pelled to  testify  against  himself.®^ 

The  extent  to  which  an  accused  person  may  be  compelled  to 
furnish  evidence  against  himself,  by  exhibiting  any  portion  of 
his  body  or  by  submitting  to  an  examination,  is  not  clearly  set- 
tled in  the  cases.  So  far  as  identification  goes,  it  seems  that 
an  accused  person  cannot  claim  his  privilege,  when  asked  to 
rise  or  to  uncover  his  face.®^ 

The  tendency  is  not  to  compel  an  accused  person  to  go  much 
further  than  this.*^ 


223.  INFERENCE  FROM  FAILURE  TO  TESTIFY— The  fact 
that  an  accused  person  exercises  his  privilege,  and 
remains  silent,  does  not  furnish  ground  for  an  in- 
ference against  him. 

60  1  Greenl.  Ev.  (Lewis'  Ed.),  note  to  section  330. 

61  Cooley,  Const,  Lim.  p.  386. 

6  2  State  V.  Keasby,  100  Iowa,  231,  69  N.  W.  451;  State  v.  Prud- 
homme,  25  La.  Ann.  522. 

0  3  State  V.  Height,  117  Iowa,  6.50,  91  N.  W.  935.  59  L.  R.  A.  437, 
94  Am.  St.  Rep.  323,     See  note  in  16  Harvard  Law  Rev.  300. 


§  223)  PRIVILEGE.  309 

To  secure  to  the  accused  the  full  benefit  of  his  privilege  si- 
lence must  not  be  construed  against  him.  Under  the  old  rule, 
which  did  not  permit  him  to  testify,  there  was,  of  course,  no 
room  for  an  inference  from  his  failure  to  testify.  The  grant- 
ing to  him  of  the  privilege  of  testifying  at  his  option  would  be 
like  making  evidence  against  him,  if  it  were  to  be  thereafter 
held  that  failure  to  exercise  the  privilege  granted  justified  an  in- 
ference of  guilt.  Take  the  case  of  an  accused  person  who  is 
nervous  and  without  self-possession,  and  against  whom  there  is 
circumstantial  evidence  difficult  of  explanation  even  by  him- 
self. Before  the  statute  the  case  against  him  would  have  to  be 
proved  entirely  without  his  aid.  His  silence  would  have  no  ef- 
fect. The  statute,  however,  grants  him  the  right  to  testify.  If 
he  testifies  he  will,  on  cross-examination,  at  least,  strengthen 
the  case  against  himself.  If  he  does  not  testify  the  jury  will 
infer  from  his  silence  that  he  is  guilty.  So  that  the  statute,  in- 
stead of  being  an  aid  to  justice,  becomes  an  instrument  of  op- 
pression. There  are  some  cases  which  hold  that  silence  justi- 
fies an  inference,*'*  but  the  general  doctrine  is  otherwise. ^^  In- 
deed, in  the  statutes  relating  to  the  subject  it  is  frequently  pro- 
vided that  no  inference  shall  be  drawn  from  failure  to  exer- 
cise the  right  of  testifying.'^® 

64  State  V.  Bartlett,  55  Me.  20O.  It  is  sii'omitted  that  the  reason- 
ing of  the  court  in  this  case  is  fallacious  in  respect  to  this  matter, 
and  that  the  conclusion  reached  is  an  unjust  one.  See  opinion,  pages 
218,  219  of  55  Me. 

65  In  Com.  V.  Harlow,  110  Mass.  411,  Chapman,  C.  J.,  says:  "Since 
this  class  of  defendants  are  allowed  to  testify  if  they  will,  there  is 
some  danger,  if  one  exorcises  his  right  of  silence,  the  jury  will  look 
upon  It  as  a  proper  matter  to  weigh  against  him  in  considering  the 
question  of  his  guilt.  It  is  important  that  courts  should  carefully 
guard  his  constitutional  right."  See,  also.  Peo])le  v.  Tyler,  36  Cal. 
522,  527  ;  Watt  v.  People,  126  111.  9,  31,  IS  N.  E.  ."MO,  1  L.  R.  A.  403  ; 
State  V.  Graves,  95  Mo.  510.  8  S.  W.  739;  Heldt  v.  State,  20  Neb. 
492.  500,  30  N.  W.  626,  57  Am.  Rep.  835. 

66  Pub.  St.  Mass.  c.  160,  §  18,  par  3,  is  as  follows:  "In  the  trial 
of  all  indictments,  complaints,  and  other  proceedings  against  per- 
sons charged  with  the  commission  of  crimes  or  offenses,  a  person  so 
charged  shall,  at  his  own  request,  but  not  otherwise,  be  deemed  a 
competent  witness,  and  his  neglect  or  refusal  to  testify  shall  not 
create  any  presumption  against  him." 

m'kelv.ev.(2d  ED.) — 24 


370  WITNESSES.  (Ch.  12 

224.  WAIVER  OF  PRIVILEGE— An  accused  person  wlio 
■waives  his  privilege,  and  takes  the  stand  in  his  owrn 
behalf,  puts  himself  in  the  position  of  an  ordinary- 
witness,  and  is  subject  to  the  usual  cross-examina- 
tion. 

There  is  some  difference  of  opinion  in  the  authorities  as  to 
the  exact  effect  of  waiver  of  privilege  on  the  part  of  the  ac- 
cused— whether  he  will  be  deemed  to  have  waived  entirely  the 
constitutional  right  to  refuse  to  give  evidence  against  himself, 
or  only  to  such  extent  as  he  may  see  fit  to  go  in  answering 
questions.®'^    The  prevailing  doctrine,  and  the  one  which  seems 
the  more  correct  on  principle,  is  that  he  places  himself  in  the 
position  of  an  ordinary  witness;^*  and  having  regard  to  the 
theoretical  object  of  a  trial,  which  is  the  ascertainment  of  the 
truth  without  the  exercise  of  any  unfairness  towards  the  ac- 
cused, it  is  the  better  doctrine  to  treat  him,  when  he  takes  the 
stand,  as  an  ordinary  witness,  subject  to  the  usual  obligations 
to  have  his  version  of  the  facts  tested  by  cross-examination. 
The  cross-examination  must,  however,  be  limited  to  legitimate 
matters  connected  with  the  case.    If  it  extends  beyond  this,  the 
accused  may  claim  the  privilege  of  an  ordinary  witness  to  re- 
fuse to  answer  where  his  answers  might  tend  to  show  him  guilty 
of  other  crimes  than  the  one  for  which  he  is  being  tried. ''^     A 
question  of  some  delicacy  arises  in  those  jurisdictions  where 
the  accused  can  be  compelled  to  submit  himself  to  cross-exam- 
ination, but  on  his  refusal  is  not,  in  fact,  so  compelled.     Is  it 
proper  to  draw  any  inference  as  to  his  guilt?    If  it  be  in  a  ju- 
risdiction where  the  accused  may  be  compelled  to  answer,  but 
the  prosecution  does  not  choose  to  go  to  that  length,  there  is 
no  unfairness  in  allowing  the  jury  to  take  into  consideration  the 
fact  of  the  refusal.'^'*    If,  however,  the  question  arises  in  a  juris- 

C7  Cooley,  in  his  Constitutional  Limitations  (pages  384,  385),  lays 
down  the  doctrine  that,  if  an  accused  person  "does  testify,  he  is  at 
liberty  to  stop  at  any  point  he  chooses." 

68  People  V.  Tice,  131  N.  Y.  651,  30  N.  E.  494,  15  L.  R.  A.  660; 
Connors  v.  People,  50  N.  Y.  240 ;  State  v.  Ober,  52  N.  H.  459,  13  Am. 
Rep.  88;  Com.  v.  Smith,  163  Mass.  411,  430,  40  N.  E.  189:  Keyes 
V.  State,  122  lud.  527,  23  N.  E.  1097. 

6  9  People  V.  Brown,  72  N.  Y.  571,  28  Am.  Rep.  183. 

7  0  state  V.  Ober,  52  N.  H.  459,  13  Am.  Rep.  88;  Stover  v.  People, 
56  N.  Y.  315. 


§  225)  PRIVILEGE.  371 

diction  where  the  witness  is  held  to  have  the  ric^ht  to  refuse  to 
answer,  it  would  be  negativing  that  right  to  allow  any  infer- 
ence to  be  drawn  from  his  refusal.''^ 


SAME— PRIVILEGE  AS  TO  PARTICULAR   SUBJECTS. 

225.  There  are  particular  subjects  in  respect  to  wrhich  all 
persons  may  exercise  tlie  privilege  of  refusing  to 
testify.     Matters  of  this  sort  comprise 

(a)  State  secrets. 

(b)  Matters  tending  to   self-crimination. 

(c)  Professional  communications. 

The  rights  of  the  public  at  large  and  the  rights  of  the  indi- 
vidual demand  that  there  should  be  some  limit  to  the  matters 
into  which  courts  may  pry.  The  rights  of  a  litigant  are  sub- 
ject to  the  rights  of  the  public  at  large  J  ^  and  also  to  the  in- 
herent right  of  every  person  to  be  secure  in  his  property  and 
person.  When,  in  his  efforts  to  establish  his  case,  a  litigant 
carries  his  examination  of  witnesses  to  a  length  which  en- 
croaches upon  such  rights,  the  law  permits  the  witness  to  de- 
cline to  answer. 

71  Cooley,  in  his  Constitutional  Limitations  (6th  Ed.  pp.  385,  386), 
lays  it  down  that  an  inference  may  be  drawn  under  these  circum- 
stances. He  states  the  Michigan  practice  to  be  as  follows:  "When 
the  court  had  decided  the  question  to  be  a  proper  one,  it  would  have 
been  left  to  the  defendant  to  answer  or  not,  at  his  option ;  but,  if 
he  failed  to  answer  what  seemed  to  the  jury  a  proper  inquiry,  it 
would  be  thought  surprising  if  they  gave  his  imperfect  statement 
much  credence."  Cooley  cites  State  v.  Ober,  supra,  as  in  accord  with 
the  Michigan  practice,  but  that  case  held  distinctly  that  an  inference 
was  proper,  because  the  witness  could  be  compelled  to  answer,  and 
had  no  legal  option  to  answer  or  not,  as  he  saw  fit ;  and  in  the 
opinion  it  Is  distinctly  said  that  (page  463  of  52  N.  H.  [13  Am.  Rep. 
881),  "If  the  ruling  that  the  prisoner  had  the  right  to  decline  an- 
swering had  been  correct,  we  should  agree  with  his  counsel  that  the 
subsequent  ruling  (that  his  refusal  could  be  commented  on  to  the 
jury,  and  an  inference  drawn)  could  not  be  sustained.  As  it  was 
held  that  he  could  have  been  compelled  to  answer,  it  was  also  held 
that  an  inference  was  proper. 

~"  See  opinion  of  Pollock,  C.  B.,  in  Beatson  v.  Skene,  5  Hurl.  & 
N.  838.  853. 


372  WITNESSES.  (Ch.  12 

226.  STATE   SECRETS— With  respect   to  public  matters,   the 

privilege  extends  to  public  officers,  tlieir  subordinates, 
and  any  who  may  be  cognizant  of  such  matters,  though 
not  in  public  office. 

227.  In  the  case  of  high  public  officers  in  co-ordinate  branches 

of  the  government,  the  courts  leave  the  determina- 
tion of  \phat  is  privileged  matter  to  their  ovrn  judg- 
ment. 

228.  State   secrets  consist   of  communications  betiveen  public 

officers,  transactions  in  public  bodies,  acts  of  the  ex- 
ecutive department,  information  obtained  in  the  course 
of,  or  for  the  purpose  of,  the  enforcement  of  the 
criminal   laiv,    and  other  like   matters. 

The  privilege  as  to  state  secrets  may  be  claimed  either  by 
an  officer,  or  by  any  person  who  has  knowledge  of  the  subject, 
and  who  is  summoned  as  a  witness.  Speaking  with  respect  to 
matters  relating  to  prosecutions  for  crime,  an  eminent  jurist 
has  said :  "Courts  of  justice,  therefore,  will  not  compel  or  al- 
low the  discovery  of  such  information,  either  by  the  subordi- 
nate officer  to  whom  it  is  given,  by  the  informer  himself,  or  by 
any  other  person,  without  the  permission  of  the  government. 
The  evidence  is  excluded,  not  for  the  protection  of  the  witness 
or  of  the  party  in  the  particular  case,  but  upon  general  grounds 
of  public  policy,  because  of  the  confidential  nature  of  such 
communications."  ''^ 

The  question  arises  as  to  who  is  to  determine  whether  the 
matter  inquired  about  is  a  matter  which  is  properly  a  subject 
of  privilege.  In  the  case  of  high  public  officers,  such  as  the 
President,  heads  of  departments,  and  Governors  of  states,  the 
opinion  seems  to  prevail  that  the  officer  who  is  a  witness  may 
determine  the  question  for  himself,'^'*  although  the  courts  have 
not  hesitated  to  announce  their  own  determination  of  the  same 
question,  and  to  suggest  that  the  public  officer  should  conform 
thereto.  They  have,  however,  held  that  they  will  go  no  further 
than  this,  and  will  not  enforce  their  determination,  as  against 

•73  Gray,  J.,  in  Wortbington  v.  Scribner,  109  Mass.  487,  489,  12  Am. 
Rep.  780.  See,  also,  Appeal  of  Hartranft,  85  Pa.  433,  27  Am.  Rep. 
0G7,  wbere  tbe  privilege  was  extended  to  tbe  Governoi",  Secretary 
of  State,  Adjutant  General,  and  a  general  and  major  of  tbe  na- 
tional guard. 

7  4  Trial  of  Aaron  Burr  (1st  Ed.  1808)   vol.  1,  pp.  249,  254.  Fed.  Cas. 


§  229)  PRIVILEGE.  373 

that  of  the  officer,  if  he  finally  refuses  to  testify.'' =  In  the  case 
of  a  subordinate  officer  not  acting  under  instructions  of  his  su- 
perior, or  in  that  of  a  private  citizen  claiming  the  privilege 
with  respect  to  state  matters,  the  court  would  have  to  deter- 
mine whether  it  was  properly  claimed.'®  The  matters  which 
form  the  subject  of  this  privilege  cover  a  wide  range.  Any  act 
of,  communication  from  or  to,  or  information  possessed  by, 
any  department  of  state,  seems  to  be  embraced  within  it.'''' 


229.  SELF-INCRIMINATING  MATTERS— Any  person  who 
is  a  witness,  whether  he  be  a  party  or  stranger  to 
the  case,  may  refuse  to  answ^er  questions,  the  legiti- 
mate tendency  of  Tvhich  w^ould  be  to  shoAV  that  he 
%xras  guilty  of  crime.  ^  8 

The  most  important  matters  forming  the  subject  of  the  rules 
relating  to  the  privilege  of  witnesses  are  those  of  a  self-incrimi- 
nating nature.  They  occupy  the  attention  of  the  courts  in  the 
decisions  to  a  far  greater  extent  than  any  other  matters  of  priv- 
ilege. The  rule  relating  to  this  privilege  is  a  common-law 
rule,^^  but  has  been  written  into  constitutions  and  statutes.^** 

No.  14.694:  Thompson  v.  Railroad  Co.,  22  N.  J.  Eq.  Ill;  Appeal 
of  Hartrauft,  supra ;    Beatson  v.  Skene,  5  Hurl.  &  N.  838,  853. 

75  Thompson  v.  Railroad  Co..  22  N.  J.  Eq.  111. 

7  6  See  Beatson  v.  Skene,  5  Hurl.  &  N.  838,  854. 

77  In  addition  to  the  cases  cited  in  the  foregoing  notes  to  this 
section,  see  for  further  illustration  of  the  matters  included.  Chubb 
V.  Salomons,  3  Car.  &  K.  75,  80;  Attorney  General  v.  Briaut,  15 
Mees.  &  W.  169.  183 ;  State  v.  Soper,  16  Me.  293,  295,  33  Am.  Dec. 
665 ;    Kessler  v.  Best  (C.  C.)  121  Fed.  439. 

7  8  Steph.  Dig.  Ev.  art.  129.  For  an  exhaustive  discussion  of  the 
history  of  this  privilege,  see  article  by  Prof.  John  H.  Wigmore,  of 
the  Northwestern  University  Law  School,  in  15  Harvard  Law  Rev. 

610. 

79  In  10  How.  State  Tr.  168  (1684)  we  find  the  following:  "Ros: 
What  other  conventicles  have  you  been  at?  Smith:  Concerning- 
you,  do  you  mean?  Ros:  No;  any  other  conventicles  of  the  fa- 
natics that  you  have  sworn  against?  Smith  :  I  do  not  know  whether 
that  be  a  proper  question.     Ros:     What  say  you.   Mistress   Smith? 


80  Rev.  St.  U.  S.  §§  859,  860  [U.  S.  Conip.  St.  1901.  pp.  660,  661] ; 
Const.  U.  S.  Amend,  art.  5;  Chespeake  Club  v.  State,  63  Md.  446, 
456. 


374  WITNESSES.  (Ch.  12 

The  rule  has  acquired  a  sacredness,  by  reason  of  having  so  gen- 
erally been  made  a  constitutional  matter,  possessed  by  none  of 
the  other  rules  of  privilege.  Yet  even  in  early  times  the  rule 
had  a  strong  place  in  the  feelings  of  the  people.  This  came 
about  through  the  revulsion  of  feeling  against  the  inquisitorial 
methods  adopted  in  early  times  for  the  discovery  of  crime. 
The  political  struggles  in  England,  bringing  in  their  wake 
trials  for  political  crimes,  with  their  Star  Chamber  methods, 
impressed  upon  the  people  the  necessity  of  protection  from  un- 
limited inquiry  into  private  affairs  under  the  guise  of  the  law. 
The  rule  accordingly  became  firmly  established,  and  was  in- 
variably respected  by  the  courts  as  fixing  a  limit  beyond  which 
they  could  not  go.  Matter  privileged  under  this  head  includes 
anything  which  would  tend  to  subject  the  witness  to  imprison- 
ment, forfeiture  or  confiscation  of  lands,  or  to  a  penalty,^ ^  but 
does  not  extend  to  matter  which  would  make  him  subject  to 
civil  damages.®^  It  may  happen  that  the  matter  concerning 
which  a  witness  claims  his  privilege,  while  incriminating,  will 
not  prejudice  the  witness,  by  reason  of  his  having  been  pre- 
viously tried  and  acquitted,  or  because  the  statue  of  limitations 
has  run  against  the  offense.  Under  such  circumstances  it  has 
been  held  that  the  privilege  is  not  applicable.^^* 

But,  where  it  has  been  expressly  provided  by  statute  that  no 
testimony  given  by  a  witness  in  proceedings  to  which  the  stat- 
ute relates  shall  be  offered  in  evidence  against  him  in  any  crimi- 
nal proceeding,  it  has  nevertheless  been  held  that  a  witness  who 
refuses  cannot  be  compelled  to  answer — that  his  constitutional 
privilege  still  exists.^*     This  has  not  been  the  universal  rule, 

L.  C.  J.:  No;  no;  that  you  must  not  ask  her;  that  is  to  accuse 
herself.  Just.  Hoi.:  You  must  not  ask  her  anything  but  that  you 
stand  here  charged  with.  L.  C.  J. :  You  must  not  ask  her  anything 
that  may  make  her  obnoxious  to  any  penalty." 

siPye  V.  Butterfield,  5  Best  &  S.  829,  838;  Raines  v.  Towgood, 
Peake,  Add.  Cas.  105. 

82  Bull  V.  Loveland,  10  Pick.  (Mass.)  9. 

8  3  Close  V.  Olney,  1  Denio  (N.  Y.)  319. 

84  In  re  Eosser  (D.  C.)  9G  Fed.  305.  In  this  particular  case  the 
statutory  provision  in  question  was  that  contained  in  section  7  of  the 
bankruptcy  act  (Act  July  1,  1898,  c.  541.  30  Stat.  548  [U.  S.  Comp.  St. 
1901,  p.  34241).  See,  also,  In  re  Kanter  (D.  C.)  117  Fed.  35G.  In 
another  instance,  where  the  statute  was  framed  more  broadly  with 


§  230)  PRIVILEGE.  375 

however,  and  it  would  seem  that,  if  the  provision  of  the  statute 
is  strong  enough  and  broad  enough  to  completely  protect  a 
witness,  there  would  then  be  no  place  for  the  application  of  the 
constitutional  provision.^^ 


230.  SAME— HUSBAND  OR  AVIFE  OF  WITNESS  PROTECT- 
ED— A  ^ritness  may  also  refuse  to  disclose  matters 
tending  to  show  that  the  husband  or  ivi£e  of  such  ^xrit- 
ness  is  guilty  of  a  crime. 

The  same  principle — that  of  unity  of  interest — which  pre- 
vented the  husband  or  wife  of  a  party  to  the  suit  from  being 
a  witness  when  the  party  himself  was  disqualified  was  also  held 
to  protect  the  husband  or  wife  of  a  witness  under  the  privilege 
as  to  incriminating  matters.  And,  as  the  privilege  has  come 
down  to  us  to-day  only  strengthened  and  re-enforced  by  statu- 
tory and  constitutional  enactment,  so,  also,  has  the  phase  of  it 
relating  to  the  marital  relation.^*  One's  marital  partner  is 
recognized  by  the  courts  as  possessing  an  identity  of  mental 
and  moral  interest  which  precludes  the  idea  of  compelling  one 
to  place  such  partner  in  jeopardy  of  punishment  for  crime. 
The  rule  is  a  healthy  one,  and  productive  of  good  results,  in 
encouraging  the  intimate,  harmonious  relations  which  should 
exist  between  husband  and  wife  to  make  the  conjugal  relation 
of  greatest  benefit  to  the  state.*^ 


fc>' 


respect  to  the  use  of  the  incriminating  evidence,  it  was  held  that  the 
constitutional  provision  had  no  application.  Brown  v.  Wallier,  161 
U.  S.  591,  16  Sup.  Ct.  644.  40  L.  Ed.  819. 

8  5  Brown  v.  Walker,  supra. 

86  The  English  doctrine  seems  to  be  that  the  husband  or  wife  is 
a  competent  witness,  but  not  a  compellable  one.  1  Hale,  P.  C.  .301 ; 
Rex  V.  Inhabitants  of  All  Saints,  6  ^Nlaule  &  S.  194,  199 ;  Rex  v.  In- 
habitants of  Bathwick,  2  Bam.  &  Adol.  6.39,  647.  Some  of  the  Amer- 
ican cases  hold  that  the  husband  or  wife  is  competent  to  testify  to 
inci'iminating  matter  against  the  other.  Kelly  v.  Drew,  12  Allen 
(Mass.)  107,  90  Am.  Dec.  138;  State  v.  Wilson,  31  N.  J.  Law,  77; 
State  V.  Bridgman,  49  Vt.  202,  24  Am.  Rep.  124.  But  see  Royal  Ins. 
Co.  V.  Noble,  5  Abb.  Prac.  N.  S.  (N.  Y.)  54 ;  State  v.  Briggs,  9  R.  I. 
361,  11  Am.  Rep.  270,  which  follow  the  English  doctrine. 

8  7  State  V.  Wilson,  31  N.  J.  Law,  77.  The  extent  to  which  the 
courts  will  carry  this  rule  is  shown  in  Moore  v.  State,  45  Tex.  Cr. 
R.  234,  75  S.  W.  497,  67  L.  R.  A.  499,  108  Am.  St.  Rep.  952,  where  the 


376  WITNESSES.  (Ch.  12 

231.  SAME  — HOTV  PRIVILEGE  CLAIMED  —  Tlie  privilege 
must  be  claimed  by  the  witness  personally  after  tbe 
question  Kas  been  put  to  ^vhich  he  declines  to  give  an 
answer. 

The  method  of  avaihng  oneself  of  the  privilege  is  by  claim- 
ing it  after  the  question  has  been  put.  It  is  the  prevailing  doc- 
trine to  allow  the  examining  attorney  to  put  the  questions,  and 
to  allow  them  to  stand  on  the  record.  The  witness  must  then 
decline,  in  each  instance,  to  answer,  stating  his  ground.  The 
privilege  must  be  claimed  personally.  An  attorney  in  the  suit 
cannot  claim  it  for  the  witness,  nor  an  attorney  acting  for  the 
witness,^^  though  it  is  common  practice  for  an  attorney  in 
the  suit  to  call  the  witness'  attention  to  the  matter,  either  di- 
rectly, or  through  application  to  the  court  for  instruction  to  be 
given  to  the  witness  as  to  his  rights.®^  Where,  on  a  criminal 
trial,  the  accused  is  a  witness  for  himself,  he  does  not,  however, 
lose  his  character  as  a  party ;  and  in  such  case  his  attorney  can 
claim  on  his  behalf  the  privilege,  and,  in  case  of  denial,  may 
take  an  exception  and  bring  the  matter  up  on  appeal.®" 


232.  SAME— W^AIVER  OF  PRIVILEGE— A  witness  may  waive 
his  privilege,  and  testify  concerning  incriminating 
matter,  in  w^hich  case  he  is  bound  to  ausvirer  fully. 

The  general  American  doctrine  is  that  a  witness  who  enters 
into  a  subject  which  is  incriminating  must  answer  all  questions 
relating  to  that  subject. ^^    He  cannot  stop  at  will  after  having 

witness  was  allowed  to  exercise  lier  privilege,  although  It  was  shown 
that  she  was  the  only  eyewitness  of  the  crime,  and  the  defendant  had 
married  her  solely  to  prevent  her  testifying  against  him.  In  an  ac- 
tion of  bigamy  the  wife  is  a  competent  witness.  Hills  v.  State,  61 
Neb.  589,  85  N.  W.  836,  57  L.  R.  A.  155. 

8  8  People  V.  Priori,  164  N.  Y.  459,  58  N.  E.  668;  Cora.  v.  Shaw, 
4  Cush.  (Mass.)  5!}4,  50  Am.  Dec.  813;  Roddy  v.  Finnegau,  43  Md. 
490,  502 ;  White  v.  State,  52  Miss.  216,  225 ;  Lothrop  v.  Roberts,  16 
Colo.  250.  27  Pac.  698. 

8  9  But  it  has  been  held  that  there  is  no  duty  imposed  on  the  court 
to  warn  the  witness.     Com,  v.  Shaw,  supra. 

00  Twple  V.  Brown,  72  N.  Y.  571,  28  Am.  Rep.  183.  But  see  State 
V.  Wentworth,  65  Me.  234,  242,  20  Am.  Rep.  688. 

91 1  Whart.  Ev,  §  539 ;    Foster  v.  Pierce,  11  Cush.  (Mass.)  437,  59 


§  232)  PRIVILEGE.  377 

told  part  of  the  facts.  This  is  not  considered  unfair  to  the  wit- 
ness, and  is  necessary  to  a  proper  testing  of  his  statements  by 
cross-examination.  It  would  be  productive  of  grave  injustice 
on  many  occasions  if  a  witness  could  give  such  version  as  he 
chose  of  incriminating  facts  on  his  direct  examination,  and 
then  be  allowed  to  refuse  to  answer  questions  on  cross-exam- 
ination, or  when  he  saw,  on  cross-examination,  that  he  was  be- 
ing made  to  put  the  facts  in  a  different  light,  to  stop  short  and 
decline  to  testify  further.  The  courts  provide  against  this  by 
giving  a  witness  his  option  whether  to  testify  or  not,  but,  having 
exercised  his  option,  they  compel  him  to  stand  by  it.  If,  how- 
ever, a  witness  has  not  intentionally  entered  upon  the  incrimi- 
nating matter,  and,  as  soon  as  he  realizes  his  position,  claims 
his  privilege,  it  will  be  allowed. ''^  An  accused  person  who 
takes  the  stand  in  his  own  behalf  does  not  thereby  waive  his 
privilege  as  to  matters  which  would  tend  to  show  him  guilty 
of  crimes  other  than  the  one  for  which  he  is  being  tried. ^^ 

Am.  Dec.  152:  Com.  v.  Pratt.  126  Mass.  462;  Coburn  v.  Odell,  10 
Fost.  (N.  H.)  540.  556:  Chamberlain  v.  Willson,  12  Vt.  491.  36  Am. 
Dec.  356;  Foster  v.  People.  18  Mich.  266;  State  v.  Fay,  43  Iowa, 
651;  People  v.  Freshour,  55  Cal.  375.  But  see,  contra,  Chesapeake 
Club  V.  State,  63  Md.  446.  The  English  doctrine,  as  laid  down  by 
nine  judges  as  against  six,  is  that  the  witness  may  claim  his  priv- 
ilege at  any  time,  even  after  having  partially  gone  into  the  subject. 
Reg.  V.  Garbett.  Denison,  Crown  Cas.  236.  2  Car.  &  K.  474. 

92  Mayo  V.  Mayo,  119  Mass.  290.  Morton,  J.,  says  in  this  case 
(page  292) :  "It  is  within  the  discretion  of  the  court  and  the  usual 
practice  to  advise  a  witness  that  he  is  not  bound  to  criminate  him- 
self, where  it  appears  necessary  to  protect  the  rights  of  the  witness. 
If,  after  having  advised  him  generally,  it  appears  to  the  presiding 
justice  that  the  witness  intends  to  insist  on  his  privilege,  but  does 
not  fully  understand  his  rights,  it  is  competent  for  him  to  instruct 
the  witness  fully  as  to  them :  otherwise,  the  witness  might  be  en- 
trapped into  a  position  where  his  privilege  as  a  witness  would  be 
entirely  defeated  through  his  ignorance,  and  he  would  be  obliged  fully 
to  criminate  himself."     See,  also.  Coburn  v.  Odell,  10  Fost.  (N.  H.) 

540,  556. 

93  People  V.  Bro\\Ti.  72  N.  Y.  571.  28  Am.  Rep.  183 ;  Baehner  v. 
State,  25  Ind.  App.  597,  58  N.  E.  741. 


378  WITNESSES.  (Ch.  12 

233.    SAME— REMEDY  IN  CASE  OF  DENIAL  OF  PRIVILEGE 

—In  case  of  denial  of  privilege  to  a  w^itness  who  claims 
it,  he  has,  if  a  party,  two  remedies,  appeal  or  habe- 
as corpus  proceedings;  if  a  stranger  he  has  but  one, 
habeas   corpus. 

The  remedy  of  a  party  to  the  suit,  who,  as  a  witness,  is  de- 
nied his  privilege,  and  ordered  to  testify  is  (1)  by  refusal  to 
obey  the  order,  and,  on  commitment  for  contempt,  to  obtain  a 
writ  of  habeas  corpus,  and  thus  test  the  question ;  or  (2)  by  tak- 
ing an  exception  to  the  ruling  of  the  court,  giving  the  testi- 
mony, and  bringing  the  question  up  on  appeal.  It  is  in  some 
jurisdictions  held  that  in  case  a  witness  who  is  a  stranger  to  the 
suit  is  erroneously  compelled  to  testify  to  incriminating  mat- 
ters, the  party  to  the  suit  who  is  injured  thereby  may  obtain 
relief  by  exception  and  appeal.''*  Where  a  witness  not  a  party 
to  the  suit  has  the  privilege  denied  him,  the  only  way  in  which 
he  can  assert  his  right  is  by  refusing  absolutely  to  answer,  go 
to  jail  for  contempt,  and  bring  the  question  up  on  habeas  cor- 
pus proceedings.''^  If,  however,  a  witness,  not  allowed  to  ex- 
ercise his  privilege  where  he  properly  should  be  allowed,  gives 
his  testimony,  it  cannot  be  used  against  him. 


96 


234.  SAME— INFERENCE  FROM  EXERCISE  OF  PRIVILEGE 
— The  jury  are  not  permitted  to  draw  any  inference 
as  to  the  facts  in  issue  from  the  refusal  of  a  witness 
to  answer  on  the  g^round  of  privilege. 

«4uom.  V.  Kimball,  24  Pick.  (Mass.)  366,  369;  State  v.  Olin,  23 
Wis.  309,  319.     See,  contra,  Reg.  v.  Kinglake,  22  Law  T.  (N.  S.)  335. 

9  5  See  note  on  pages  410-415,  Hurd,  Hab.  Corp.  (2d  Ed.).  An  illus- 
tration of  the  unsuccessful  resort  to  habeas  corpus  proceedings  by 
a  witness  who  refused  to  produce  books  requested  of  him  is  found 
in  Bumham  v.  Morrissey,  14  Gray  (Mass.)  226,  74  Am.  Dec.  676. 
This  case  shows  how  the  right  of  a  witness  to  refuse  to  answer  may 
be  tested  in  such  proceedings. 

9  6  Horstman  v.  Kaufman,  97  Pa.  147,  152,  39  Am.  Rep.  802.  In 
Reg.  V.  Sloggett,  7  Cox,  Cr.  R.  139,  the  witness  having  testified  to 
incriminating  matter  without  having  claimed  his  privilege,  it  was 
held  that  it  could  be  used  against  him  in  a  subsequent  proceeding, 
though  It  was  conceded  that  the  result  would  have  been  otherwise 
had  he  objected  to  giving  the  testimony. 


§  234)  PRIVILEGE.  379 

The  principle  which  governs  in  the  case  of  the  drawing  of 
inferences  from  the  refusal  of  accused  persons  to  testify  has  a 
similar  appHcation  here ;  at  least,  so  far  as  parties  to  civil  ac- 
tions and  proceedings  are  concerned.  A  party  who  is  a  witness 
would  be  denied  the  benefits  of  his  privilege  if  he  were  to  be 
punished  for  exercising  it  by  having  an  inference  drawn  unfav- 
orable to  him.  A  party  to  a  civil  action  or  proceeding  who 
takes  the  stand  either  in  his  own  behalf,  or  on  subpoena  from 
the  other  side,  does  not  offer  himself  as  a  witness  to  facts  which 
tend  to  criminate  him,  any  more  than  a  stranger  to  the  suit  who 
is  a  witness.  In  this  respect  he  differs  from  a  party  to  a  crimi- 
nal proceeding,  who,  when  he  takes  the  stand,  knows  that  the 
subject  of  his  testimony  is  the  criminal  charge  against  him,  and 
therefore  must  be  regarded  as  waiving  his  privilege.  In  the 
latter  case,  if  the  party  be  allowed  to  refuse  to  answer,  he  can- 
not complain  of  an  inference  being  drawn  from  that  fact.  In 
the  former  case  the  matter  stands  differently.  The  party  may 
not  in  any  sense  have  waived  his  privilege,  and,  if  a  refusal  to 
testify  concerning  incriminating  matter  is  to  be  allowed  against 
him,  it  is  a  virtual  denial  to  him  of  the  benefit  of  the  privilege. 
If  the  subject-matter  of  the  action  is  such  that  in  taking  the 
stand  he  must  contemplate  testifying  concerning  incriminating 
facts,  and  his  examination,  as  far  as  it  goes,  relates  to  such 
facts,  this  would,  of  course,  be  a  waiver,  and  in  that  event  he 
could  not  complain  of  an  inference  being  drawn  in  case  he  is 
allowed  to  refuse  to  answer.*^^    In  the  case  of  a  stranger  to  the 

97  See  Stover  v.  People,  56  N.  Y.  315,  320 ;  IMorgan  v.  Kendall, 
124  Ind.  454,  24  N.  E.  143,  9  L.  R.  A.  445.  It  is  submitted  that  the 
case  of  Morgan  v.  Kendall,  which  holds  that  an  inference  may  be 
drawn  against  a  party  to  a  civil  suit  who  is  called  to  the  stand  by 
his  adversary,  and  declines  to  testify  on  the  gromid  that  his  answers 
might  tend  to  incriminate  him,  is  incorrect  on  principle.  The  case 
of  Andrews  v.  Frye,  104  Mass.  234.  relied  on  by  the  court  in  support 
of  the  doctrine  laid  down,  was  entirely  different.  In  that  case  the 
party  offered  himself  as  a  witness,  and  was  consti-ued,  by  his  vol- 
untary testimony,  to  have  waived  his  privilege.  In  the  Indiana  case 
the  defendants  were  called  as  witnesses  by  the  plaintiff.  In  its  opin- 
ion the  court  puts  the  following  case  by  way  of  illustration :  "Sup- 
pose A.  institutes  suit  against  B.  to  recover  the  value  of  a  horse 
which  A.  alleges  B.  has  stolen  from  him.  On  the  trial  of  the  cause 
A.  testifies  that  he  saw  B.  take  the  horse  from  the  stable,  and  then 
places  B.  upon  the  witness  stand,  and  asks  him  if  he  did  not  take 


080  WITNESSES.  (Ch.  12 

suit  exercising  his  privilege,  the  spirit  of  fairness  demands 
that  the  jury  should  not  draw  an  inference  unfavorable  to  ei- 
ther party,  for  the  privilege  is  something  with  which  neither 
has  anything  to  do.^*  Nor,  in  a  criminal  case,  is  any  inference 
to  be  drawn  from  the  failure  of  a  husband  or  wife  of  the  ac- 
cused to  become  a  witness  in  his  behalf.  If  husband  or  wife 
is  a  witness,  he  or  she  could,  as  we  have  seen,  refuse  to  testify 
to  matter  incriminating  the  other.  In  a  criminal  case,  how- 
ever much  it  may  appear  that  a  wife  could  explain  the  facts,  she 
need  not  take  the  stand,  and  no  inference  will  be  permitted 
from  her  failure.''^ 


235.    SAME—PRIVILEGED   MATTER   TO   BE   DETERMINEB 

BY  COURT— The  question  of  whether  an  answer  lai^^ltt 
tend  to  criminate  is  a  preliminary  question  of  fsLct, 
which  it  is  for  the  court  to  determine. 

The  question  of  what  matter  may  tend  to  incriminate  is  for 
the  court  to  determine  from  the  nature  of  the  subject  which 
is  being  inquired  into,  the  trend  of  the  examination  as  shown 
by  the  previous  questions,  and  the  facts  as  they  have  been  tes- 
tified to  by  the  witness  previous  to  claiming  the  privilege.^ ''•> 
A  witness  cannot  be  left  to  say  for  himself  when  he  will  or  will 
not  answer  questions,  and  then  defend  himself  from  punishment 
for  contempt  by  hiding  behind  his  privilege.^°^  It  must  be  fair- 
ly evident  that  the  answer,  if  given,  will  bring  out  incriminating 
matter,  or  the  witness  will  be  directed  to  answer.  It  must  re- 
late to  "a  fact  which  directly  implicates  his  own  character,  not 

the  horse  at  the  time  and  place  charged.  B.  declines  to  answer,  al- 
leging and  stating  as  a  reason  that  his  answer  would  tend  to  crim- 
inate him," — and  concludes  that  such  conduct  on  the  part  of  B.  is 
proper  for  the  jury  to  consider  in  evidence  against  him.  But  where- 
in has  B.  waived  his  privilege?  By  being  a  party  defendant  in  the 
suit?  He  could  not  help  that.  By  going  on  the  witness  stand?  He 
could  not  help  that.  The  illustration  seems  to  lead  most  emphatic- 
ally to  the  very  opposite  conclusion  to  that  reached  by  the  court. 

9  8  Beach  v.  U.  S.  (C.  C.)  40  Fed.  754. 

99  Knowles  v.  People,  15  Mich.  408,  4i:j. 

loophelin  v.  Kenderdine,  20  Pa.  354,  363;  Chesapeake  Club  of 
.\nnaiK)lis  City  v.  State,  03  Md.  446,  457. 

1011  Whart.  Ev.  §  538. 


§  236)  PRIVILEGE. 


381 


indirectly  and  by  inference."  ^'>-  At  the  same  time  the  courts 
are  disposed  to  give  a  large  latitude  to  the  witness  in  matters 
of  this  sort,  and  to  allow  him  to  determine,  within  limits  of  rea- 
sonableness, when  an  answer  would  tend  to  criminate  him.^"^ 
The  real  question  for  the  court  should  be,  not  whether  it  might, 
under  some  conceivable  circumstances,  tend  to  criminate,  but 
whether  its  reasonable  effect  will  be  in  that  direction.  In  many 
jurisdictions  there  are  statutes  providing  that  evidence  given 
by  a  witness  in  respect  to  particular  subjects  shall  not  be  used 
against  him  in  any  other  proceeding.  This  has  been  claimed 
to  operate  as  a  destruction  of  a  witness'  privilege  in  respect  to 
matters  tending  to  criminate.  This,  however,  is  a  too  strong 
construction  of  the  statute.  In  fact,  where  the  constitution 
guaranties  the  privilege  to  a  witness,  such  a  construction  might 
render  the  statute  unconstitutional.^"* 


236.  PROFESSIONAL  COMMUNICATIONS— At  common  law, 
in  very  early  times,  a  privilege  was  recognized  as  to 
matters  between  an  attorney  and  his  client,  and  this 
privilege  has  continued  in  the  strictest  form  to  the 
present  day.  An  attorney  is  neither  compelled  nor 
permitted,  without  consent  of  his  client,  to  disclose 
communications  made  to  him  by  a  client.  A  client  is 
mot   compelled   to   disclose   such  communications. 

10  2  Shaw,  C.  J.,  in  Com.  v.  Kimball,  24  Pick.  (Mass.)  366.  369. 

103  In  People  v.  Forbes,  143  N.  Y.  219,  38  N.  E.  303.  one  Taylor 
was  committed  for  contempt  for  declining  to  answer  certain  qnes- 
tions  while  he  was  a  witness  before  the  grand  jury,  on  the  ground 
the  .iuswers  might  tend  to  incriminate  him.  He  brought  a  writ  of 
certiorari  to  review  the  commitment.  .Judge  O'Brien,  delivering  the 
opinion  of  the  court,  says  (page  231.  143  N.  Y.,  and  page  306,  38  N. 
E.) :  "The  weight  of  authority'  seems  to  be  in  favor  of  the  rule  that 
the  witness  may  be  compelled  to  answer  when  he  contumaciously  re- 
fuses, or  when  it  is  perfectly  clear  and  plain  that  he  is  mistaken, 
and  that  the  answer  cannot  possibly  injure  him,  or  tend  ui  any  de- 
gree to  subject  him  to  the  peril  of  prosecution.  But  the  courts  have 
recognized  the  impossibility  in  most  cases  of  anticipating  the  effect 
of  an  answer.  Where  it  is  not  so  perfectly  evident  and  manifest 
that  the  answer  called  for  cannot  incriminate  as  to  preclude  all  rea- 
sonable doubt  or  fair  argument,  the  privilege  must  be  recognized  and 
protected." 

104  Counselman  v.  Hitchcock,  142  U.  S.  547,  12  Sup.  Ct.  195,  3.") 
L.  Ed.  1110.     A  full  discussion  of  the  matter,  and  extensive  citation 


382  WITNESSES.  (Ch.  12 

In  most  of  the  early  cases  the  question  arose  as  between  a 
party  to  the  suit  and  his  attorney,  but  the  doctrine  as  it  stands 
to-day  is  that  such  matter  is  privileged  whether  the  witness  be 
a  party  to  the  suit  or  a  stranger.  It  will  be  observed  that  with 
respect  to  the  attorney  the  privilege  is  merged  in  the  positive 
disqualification,  which,  as  explained,^°^  prevents  an  attorney 
from  testifying  as  to  these  matters.  Strictly  speaking,  there- 
fore, when  an  attorney  who  is  a  witness  refuses  to  answer  a 
question  on  the  ground  that  the  answer  would  disclose  a  pro- 
fessional communication,  he  is  not  claiming  a  privilege  so  much 
as  he  is  stating  a  fact  to  the  court  which  will  show  his  disquali- 
fication to  testify  as  to  certain  matters.  He  cannot  testify 
whether  he  wishes  to  or  not,  unless  his  client  consents. ^°^  On 
the  other  hand,  when  the  client  refuses  to  answer  on  this 
ground  he  is  claiming  a  privilege  which  he  may  waive  if  he 
chooses.  The  presence  of  a  third  party  at  the  professional  con- 
sultation between  attorney  and  client  will  not  take  the  consulta- 
tion out  of  the  realm  of  privilege,  if  the  third  person  was  present 
in  behalf  of  the  client,^'*'^  or  if  the  third  person  was  interested 
and  is  present  for  the  mutual  benefit  of  the  two,  as  where  two 
persons  are  separately  indicted  for  the  same  offense,  and  meet 
together  with  their  respective  counsel  to  consult. ^''^ 

A  seeming  exception  to  the  rule  is  found  in  the  case  where 
an  attorney  is  allowed  to  testify  to  communications  made  by 
a  deceased  client  respecting  the  intention  of  the  client  in  re- 
spect to  disputed  provisions  of  a  will.  Such  communications, 
it  has  been  held,  are  not  privileged  where  the  suit  is  between 
devisees,  and  in  fact  the  reason  for  the  rule,  namely,  the  pro- 
of authorities  will  be  found  in  tbe  opinion  of  Mr.  Justice  Blatchford 
in  this  case.  See,  also,  Emery's  Case,  107  Mass.  172,  9  Am.  Rep. 
22;  People  v.  Sharp,  107  N.  Y.  427,  14  N.  E.  319,  1  Am.  St.  Rep. 
851.     But  see,  contra.  People  v.  Kelly,  24  N.  Y.  74. 

105  Ante,  p.  364. 

106  Chirac  v.  Reinicker,  11  Wheat.  (U.  S.)  280,  294,  6  L.  Ed.  474; 
Bacon  v.  Frisbie,  80  N.  Y.  394,  36  Am.  Rep.  627 ;  Higbee  v.  Dresser, 
103  Mass.  523;  Hemeuway  v.  Smith,  28  Yt.  701;  Sweet  v.  Owens, 
109  Mo.  1,  7,  18  S.  W.  928;  Basye  v.  State,  45  Neb.  261,  281,  63  N. 
W.  811;  Riley  v.  Johnston,  13  Ga.  260,  268;  People  v.  Atkinson,  40 
Cal.  284. 

107  Bowers  v.  State,  29  Ohio  St.  542. 

108  Chahoon  v.  Com.,  21  Grat.  (Va.)  822,  834. 


§  237)  PKIVILEGE.  383 

tection  of  the  client's  interests,  would  seem  to  have  no  applica- 
tion in  this  case/^^ 

The  fact  of  the  decease  of  the  client  has  no  bearing  on  the 
admissibility  of  the  communication,  as,  where  a  third  party 
claims  against  the  representatives  of  the  deceased  client,  the 
rule  applies.^ ^° 

237.  SAME— WHEN  RELATION  OF  ATTORNEY  AND  CLI- 
ENT EXISTS— The  relation  of  attorney  and  client,  for 
the  purpose  of  this  rule,  exists  when  there  has  been 
a  genuine  professional  employment  by  and  representa- 
tion of  the  client  in  respect  to  the  matters  to  which 
the  communication  relates. 

It  is  frequently  a  question  of  some  nicety  to  determine  just 
when  the  relation  of  attorney  and  client  exists.  In  general  it 
may  be  said  that  a  bona  fide  employment  is  necessary,  and  the 
communication  must  be  during  such  employment,  and  not  a 
merely  casual  one."^  Neither  a  formal  retainer  is  necessary, 
nor  is  it  absolutely  essential  that  any  fee  at  all  be  paid  for  the 
advice  given.^^^ 

This  has  been  extended  to  the  clerks,  stenographers,  and 
those  employed  by  an  attorney,  deriving  their  information 
through  their  employment.^ ^^ 

An  attorney  acting  simply  as  copyist  or  as  scrivener  in  the 
preparing  of  deeds,  mortgages,  and  the  like,  cannot  claim  the 
privilege;  "^  nor  a  law  student;  ^^=*  nor  an  attorney  represent- 

109  Glover  v.  Patten,  165  U.  S.  394,  17  Sup.  Ct.  411,  41  L.  Ed.  760. 

110  Russell  V.  Jackson,  9  Hare,  393. 

111  Coon  V.    Swan,  30  Vt.   6. 

112  Thorp  V.  Goewey,  85  111.  611,  615;  Orton  v.  McCord,  33  Wis. 
205.  212.  But  see  De  Wolf  v.  Strader,  26  111.  225,  79  Am.  Dec.  371, 
which  declares  the  contrary  doctrine,  saying :  "There  is  no  retainer 
shown,  or  offer  to  retain  or  fee  paid.  This,  and  this  only,  can  con- 
stitute that  relation."  For  a  very  broad  construction  of  the  rule, 
see  Cross  v.  Riggins,  50  ^lo.  335. 

113  Code  Civ.   Proe.   N.  Y.  §  835. 

114  Bormn  v.  Fonts,  15  Ind.  50,  53;  Randel  v.  Yates,  48  Miss.  685-, 
Hebbard  v.  Haughian,  70  N.  Y.  54.    But  see  Rogers  v.  Lyon,  64  Barb. 

(N.  Y.)  373.  „^      ^ 

115  Barnes  v.  Harris,  7  Cush.  (Mass.)  576,  54  Am.  Dec.  734.  In 
this  case  the  party  supposed  he  was  consulting  an  attorney,  but  the 


384  WITNESSES.  (Ch.  12 

ing  both  parties/^®  though  in  the  latter  case  the  communica- 
tions, while  not  privileged  as  to  the  parties,  might  be  with  re- 
spect to  third  persons.  It  is  merely  a  case  of  both  parties  be- 
ing clients  for  the  purposes  of  compromise,  or  some  other  spe- 
cial purpose.  It  is  for  the  court  to  determine  when  the  relation 
exists,  and  not  for  the  witness.  The  witness  may  even  dis- 
claim acting  as  attorney,  yet,  if  the  facts  appear  to  the  court 
to  have  brought  about  such  a  relation,  the  witness  will  not  be 
permitted  to  testify. ^^^  There  are  many  other  decisions  as  to 
the  application  of  the  rule  in  particular  cases,  but  they  all  point 
to  the  same  end,  to  wit,  a  genuine  professional  employment. 


238.  SAME— WHAT  INCLUDED  IN  PRIVILEGED  MATTER 
— The  thing  that  is  privileged  is  not  the  facts  about 
\irhich  the  communication  was  had,  but  the  communi- 
cation itself,  or  w^hat  was  said  betureen  the  attorney 
and   client. 

The  rule  is  a  broad  one  in  its  scope,  and  covers  every  com- 
munication made  with  respect  to  rights  or  liabilities  of  a  client, 
whether  or  not  there  is  litigation  pending.^^^ 

court  held  that  made  no  difference.  See,  also,  Sample  v.  Frost,  10 
Iowa,  26G;  Schubkagel  v.  Dierstein,  131  Pa.  46,  18  Atl.  1059,  6  L. 
R.  A.  481. 

iicGulick  V.  GuJick,  .38  N.  J.  Eq.  402;  Goodwin  Gas  Stove  &  Me- 
ter Co.'s  Appeal.  117  Pa.  514,  12  Atl.  736,  2  Am.  St.  Rep.  G96 ;  Ca- 
dy  V.  Walker.  62  Mich.  157,  28  N.  W.  805.  4  Am.  St.  Rep.  834 :  Han- 
Ion  V.  Doherty,  109  Ind.  37,  43,  9  N.  E.  782. 

117  Bacon  v.  Frisbie,  80  N.  Y.  394,  399,  36  Am.  Rep.  627;  Max- 
ham  V.  Place,  46  Vt.  434.  443. 

11 «  Rogers  v.  Daniels,  116  111.  App.  515.  In  an  action  of  assump- 
sit the  court  held  that  evidence  tending  to  show  that  the  plaintiff 
looked  to  another  person  for  payment  at  the  time  of  the  haiijiening 
was  properly  excluded,  since  it  came  under  the  head  of  privileged 
communication.  The  court  said:  "The  rule  as  to  privileged  commu- 
nications extends  to  every  commvmication  which  the  client  makes  to 
his  legal  adviser  for  the  purpose  of  professional  advice  or  aid  upon 
the  subject  of  his  rights  and  liabilities,  and  it  is  not  essential  that 
any  judicial  proceeding  in  jiarticular  should  have  b^en  commenced 
or  contemplated.  It  is  enough  if  the  matter  in  hand  may,  by  pos- 
sibility, become  the  matter  of  judicial  inquiry."  Rooney  v.  Casual- 
ty Co.,  184  ^lass.  26,  67  N.  E.  882. 


§  238)  PRIVILEGE.  385 

There  is  some  conflict  in  tlie  law  as  to  whether  communica- 
tions made  by  a  third  party  present  at  the  consultation  between 
attorney  and  client  are  privileged.  On  principle  it  would  seem 
that  if  the  third  person  is  present  for  the  purposes  of  the  con- 
ference, and  was  not  a  mere  casual  listener,  his  part  in  the  con- 
versation should  be  privileged.^ ^® 

If,  however,  a  client,  having  a  knowledge  of  certain  facts, 
discloses  these  facts  to  his  attorney,  the  facts  themselves  are 
not  thereby  rendered  privileged.     The  client,  but  not  the  at- 
torney, may  still  be  asked  and  compelled  to  testify  to  what  he 
knows  concerning  them,  because  his  knowledge  was  not  de- 
rived through  the  communication  with  his  attorney.    Facts,  on 
the   other  hand,  of  which  a  knowledge   was  acquired   solely 
through  the  communication,  the  witness  may  refuse  to  state, 
because  to  compel  him  to  state  them  would  be  to  compel  him  to 
give  the  substance  of  the  professional  communication.     This 
Avould  be  the  position  of  the  attorney  in  the  illustration  just 
above.    Having  acquired  knowledge  of  the  facts  solely  from  his 
client,  he  could  not  testify  concerning  them.     Anything  which 
happened  in  the  presence  of  an  attorney,  and  which,  as  a  fact, 
he  acquires  knowledge  of  by  observation,  even  though  it  relate 
to  or  involve  or  be  the  act  of  his  client,  provided  it  happens  or 
is  done  outside  of,  and  without  reference  to,  the  professional 
relation,  is  not  privileged. ^^'^    Facts  of  which  the  attorney  had 
knowledge  prior  to  the  communications  between  himself  and 
his  client,  or  of  which  he  acquires  knowledge  from  other  sour- 
ces than  through  his  relation  with  his  client,  are  not  included  in 
privileged  matters.^ -^ 

119  Such  communications  were  held  privilesrecl.  Hartness  v.  Brown, 
21  Wash.  6.5.5,  59  Pac.  491;  Greenough  v.  Gaskell,  1  Myl.  &  K.  98. 
See,  contra.  People  v.  Buchanan,  145  N.  Y.  1,  39  N.  E.  846;  In  re 
O'Donohoe,  Fed.  Cas.  No.   10.435. 

120  state  V.  Stone,  65  N.  H.  124.  18  Atl.  654.  Compare  Kaut  v. 
Kessler,  114  Pa.  603,  7  Atl.  586. 

121  Chillicothe  Ferry  Road  &  Bridge  Co.  v.  Jameson,  48  111.  281. 

m'icelv.ev.(2d  ED.)— 25 


386  WITNESSES.  (Ch.  12 

239.    SAME— INFERENCE  FROM  EXERCISE  OF  PRIVIIiEGE 

— AVIieii  the  privilege  is  claimed,  no  inference  is  per- 
mitted from  tlie  refusal  to  testify. 

This  is  the  general  rule  in  respect  to  all  matters  of  privilege, 
and  should  apply  equally  here.  To  allow  an  inference  would 
be  to  defeat  in  a  measure  the  object  of  the  rule  giving  the  priv- 
ilege. This  object  is  the  freest  and  most  untrammeled  adminis- 
tration of  justice.  Anything  which  will  tend  to  prevent  or  dis- 
courage the  fullest  confidence  between  attorney  and  client 
works  against  this.  To  permit  any  unfavorable  inferences  to 
be  drawn  from  the  exercise  of  the  privilege  would  discourage 
the  desire  to  claim  the  privilege,  and  ultimately  cause  less  free- 
dom of  communication. 


240.  SAME— CONSENT  OF  CLIENT— The  client  may  release 
the  attorney  from  the  disqualification,  and  may  him- 
self Tvaive  the  privilege,  but  it  must  be  done  clearly 
and   expressly. 

If  the  client  consents  to  the  attorney  testifying,  it  would  seem 
that  the  disqualification  is  entirely  removed,  and  that  the  attorney 
has  no  power  to  claim  any  privilege.  The  authorities  are,  how- 
ever, very  clear  that  such  release  must  be  positive  and  definite. 
The  fact  that  the  client  calls  his  attorney  to  the  stand  in  his 
own  behalf  should  not  be  construed  as  a  waiver.  Nor  is  it  a 
waiver  that  the  client  takes  the  stand  in  his  own  behalf.^ ^^  If 
the  client,  when  a  witness,  answers  at  all  in  respect  to  the  priv- 
ileged matter,  it  is  a  sufficient  waiver  of  his  privilege,  and  he 
will  be  obliged  to  answer  all  questions  in  respect  to  it.^^^ 

122  Duttenhofer  v.  State,  34  Ohio  St.  91,  32  Am.  Rep.  362;  Big- 
ler  V.  Reyher,  43  Incl.  112;  Barker  v.  Kuhn,  38  Iowa,  392.  Contra, 
Inhabitants  of  Woburn  v.  Henshaw,  101  Mass.  193,  200,  3  Am.  Rep. 
333;    Montgomery  v.  Pickering,  116  Mass.  227,  231. 

123  People  V.  Patrick,  182  N.  Y.  131,  175,  74  N.  E.  843. 


■  *>. 


§  241)  EXAMINATION   OF  WITNESSES.  387 

CHAPTER  XIII. 

EXAMINATION  OF  WITNESSES. 

241.  Ordinary  Method  of  Examination. 

242.  Exclusion  of  Witnesses. 

243.  Witness  to  Testify  Orally. 

244.  Refresliing   Memory  of  Witness. 

245.  Admissibility  of  Papers  Used  to  Refresh  Recollection. 

246.  Deception  of  Court  by  Witness. 

247.  Direct  Examination. 

248.  Leading  Questions. 

249.  Application  of  Rule. 

250.  In  Case  of  Hostile  Witness. 
251-253.     Impeaching  One's  Own  Witness. 

254.  Exception  to  Rule. 

255.  Impeaching  Testimony  of  Adopted  Witness. 

256.  Direct  Examination  of  Defendant's  Witness. 

257.  Cross-Examiuatlou. 

258.  Scope  of  Cross-Examination. 

259.  Scope  Unlimited  in  Respect  to  Credibility. 

260.  Leading  Questions  on  Cross-Examiuation. 

261.  Self-Contradiction. 

262.  Re-examination. 

263.  Purpose  of  Re-examination. 

ORDINARY  METHOD   OF  EXAMINATION. 

241.  The  regular  method  of  procedure  in  the  trial  of  a  case 
requires  the  parties  in  turn  to  introduce  their  proof, 
beginning:  with  the  one  who  has  the  affirmative  of  the 
issue,  and  each  in  his  turn  putting  in  all  which  he  in- 
tends to  bring  forward  to  support   his   case. 

The  successful  and  orderly  administration  of  justice  requires 
that  some  system  be  followed  in  the  introduction  of  testimony 
upon  a  trial,  and  a  uniform  system  has  grown  up;  a  system 
which  has  satisfied  the  English  and  American  idea  of  fair  play. 
It  is,  in  brief,  that  each  party  shall  have  his  say, — i.  e.,  put  for- 
ward his  case  by  his  witnesses — and  shall  complete  it  without 
interruption  except  by  cross-examination.  The  trial  thus  pro- 
ceeds by  stages  until  the  issues  are  exhausted.     The  plaintiff 


3S8  EXAMINATION    OF   WITNESSES.  (Ch.  13 

usually  begins  and  must  put  in  his  whole  case ;  that  is,  all  the 
testimony  which  he  intends  to  offer  to  support  the  claims  he 
has  made.  The  defendant  then  proceeds  to  put  in  all  the  tes- 
timony which  he  has  to  disprove  the  facts  as  shown  by  plain- 
tiff's witnesses,  and,  if  there  is  an  affirmative  defense,  to  sup- 
port the  facts  set  up  in  his  pleading.  The  plaintiff  then  again 
takes  up  the  work,  and  is  permitted  to  put  in  what  testimony 
he  has  to  explain,  qualify,  or  contradict  any  matter  in  the  de- 
fendant's testimony ;  but  he  cannot  add  to  his  original  case. 
The  parties  may  thus  proceed  by  alternate  stages  as  long  as 
the  court,  in  its  discretion,  deems  anything  will  be  gained  in 
the  clarifying  of  the  issues.^  As  a  practical  matter,  the  case  is 
usually  confined  to  three,  or,  where  there  is  an  affirmative  de- 
fense or  counterclaim,  four,  stages. 

The  regular  order  of  proof  may  be  and  frequently  is  depart- 
ed from  by  the  court.  In  particular  cases  the  circumstances 
may  prevent  the  production  of  a  witness  by  the  plaintiff  at  the 
proper  time,  and  he  may  be  allowed  to  examine  him  after  the 
defendant  has  put  in  the  whole  or  a  part  of  his  case.  The 
court  is  not  bound  to  allow  any  departure  from  the  ordinary 
methods  of  proceeding.  It  is  simply  a  matter  of  discretion,  and 
therefore  not  a  ground  for  assignment  of  error.^ 

1  People  V.  Linares.  142  Cal.  17,  75  Pac.  308. 

2  Philadelphia  &  T.  R.  Co.  v.  Stlmpson,  14  Pet.  (U.  S.)  448,  462,  10 
L.  Ed.  535 ;  Livingston  v.  Com.,  7  Grat.  (Va.)  658.  In  the  case  first 
cited,  testimony  was  offered  by  the  defendants  after  they  had 
stated  in  open  court  that  they  had  closed  their  evidence,  and  aft- 
er the  plaintiff  had  discharged  his  witnesses.  The  court  exclud- 
ed it,  on  the  ground  that  it  was  not  a  proper  time  to  receive  it. 
In  sustaining  this  ruling,  the  Supreme  Court,  per  Mr.  .Justice 
Story,  says:  "If  every  party  had  a  right  to  introduce  evidence 
at  any  time,  at  his  own  election,  without  reference  to  the  stage 
of  the  trial  in  which  it  is  offered,  it  is  obvious  that  the  proceedings 
of  the  court  would  often  be  greatly  embarrassed,  the  purposes  of 
justice  be  obstructed,  and  the  parties  themselves  be  surprised  by 
evidence  destructive  of  their  rights,  which  they  could  not  have  fore- 
seen, or  in  any  manner  have  guarded  against.  It  seems  to  us,  there- 
fore, that  all  courts  ought  to  be,  as  indeed  they  generally  are,  in- 
vested with  a  large  discretion  on  this  subject,  to  prevent  the  most 
mischievous  consequences  in  the  administration  of  justice  to  suitors." 
In  the  second  case,  testimony  was  admitted  after  the  case  had  been 
fjubmitted  to  the  jury,  and  they  had  failed  to  agree. 


§  242)  EXCLUSION    OF   WITNESSES.  389 


EXCLUSION  OF  "WITNESSES. 

242.  It  is  within  tie  discretion  of  the  court  to  have  all  or 
any  of  the  persons  who  are  intended  to  be  witnesses 
in  the  case  excluded  while  any  one  witness  is  being 
examined. 

This  is  only  another  instance  of  the  appHcation  of  the  prin- 
ciple of  fairness  which  characterizes  our  judicial  proceedings. 
Apparently  this  practice  of  excluding  witnesses  has  existed 
from  the  earliest  times. ^  The  advantage  is  obvious,  as  in  many 
cases  the  testimony  of  uncertain  or  dishonest  witnesses  might 
be  afifected  by  the  testimony  of  other  witnesses  given  in  their 
hearing,  and  the  effect  of  which  they  could  see.*  In  case  of 
refusal  by  or  failure  of  a  witness  to  leave  the  courtroom  the 
only  remedy  appears  to  be  for  the  court  to  punish  the  witness 
for  contempt  of  court.  It  has  been  said  that  in  such  cases  the 
court  may  refuse  to  hear  the  testimony  of  the  witness,  but  this 
would  appear  to  be  rather  unfair  punishment  in  its  effect  upon 
the  party  producing  the  witness,  as  he  may  have  no  control 
over  him.  The  generally  accepted  opinion  is  that  punishment 
for  contempt  is  the  appropriate  remedy  as  against  the  witness, 
and  that  the  party  himself  shall  not  suffer  from  the  behavior 
of  the  witness  further  than  that  it  may  be  made  the  subject  of 
comment  by  opposing  counsel  in  so  far  as  it  seems  to  affect  the 
witness'  testimony.^ 

8  "And,  if  necessity  so  require,  tlie  witnesses  may  be  heard  and 
examined  apart,  till  they  shall  have  deposed  all  that  they  have  to- 
give  in  evidence,  so  that  what  the  one  has  declared  shall  not  inform 
or  induce  another  witness  of  the  same  side  to  give  his  evidence  in 
the  same  words,  or  to  the  very  same  effect."  Fort.  De  Laud.  c.  26 
(1404-70).  page  91  In  Gregor's  translation.  See,  also,  Thayer  Cas.  Ev. 
(2d  E<i.)  p.  5. 

Prof.  Wigmore  in  an  able  article  on  "Sequestration  of  Witnesses," 
cites  the  story  of  Daniel's  judgment  in  Susanna's  case  from  the 
Scriptures  as  an  early  instance  of  this  practice.  14  Harvard  Law 
Rev.  475. 

4  1  Greenl.  Ev.  §  432.  and  notes. 

5  Best,  Ev.  §  636 ;  McHugh  v.  State,  42  Ohio  St.  154,  158 ;  Taylor 
V.  State.  130  Ind.  06,  70.  29  N.  E.  415 ;  Gregg  v.  State,  3  W.  Va.  705. 
713;  Hubbard  v.  Hubbard,  7  Or.  42;  State  v.  Falk,  46  Kan.  498.  26 
Pac.  1023.    But  it  is  held  in  Sartorious  v.  State.  24  Miss.  602,  608, 


390  EXAMINATION    OF   WITNESSES.  (Ch.  lo 

A  party  to  the  suit  cannot,  however,  be  excluded  from  the 
courtroom  as  a  witness.  He  has  the  right  to  be  present  at  all 
times.®  Nor  does  the  right  to  exclude  extend  to  an  attorney 
in  the  case.'' 


W^ITNESS   TO   TESTIFY   ORALILY. 

243.    It  is  the  general  rule  that  the  testimony  of   a  w^itness 
is  to  be  given  viva  voce. 

When  testimony  is  to  be  given  in  court  at  a  trial,  it  is  to  be 
given  verbally,  in  the  presence  of  the  court  and  jury,  where  the 
behavior,  expression,  and  gestures  of  a  witness  may  be  seen. 
One  cannot  write  out  his  testimony,  and  read  it  to  the  jury 
himself,  or  have  it  read.  One  of  the  strongest  indications  of  the 
truthfulness  of  a  witness  is  his  manner  under  the  particular 
circumstances  which  surround  the  giving  of  his  testimony. 
This  is,  of  course,  lost  to  the  jury  unless  the  witness  testify 
orally  before  it.  Wherever  possible,  therefore,  and  except 
where  necessity  compels  testimony  to  be  taken  by  deposition, 
the  witness  is  to  be  personally  present,  and  state  orally  such 
facts  as  he  may  be  called  upon  to  give.® 

It  has  been  seen  in  the  rules  heretofore  discussed  in  the 
chapter  on  "Hearsay"  that  a  witness  is  expected  to  testify  from 
his  own  knowledge.  In  the  examination  of  witnesses  much 
difference  is  brought  out  between  the  ideas  and  language  of 
various  witnesses  in  reference  to  their  own  knowledge  of  the 
facts  about  which  they  are  questioned.  One  witness  will  know 
a  thing,  another  will,  have  a  recollection,  and  another  will  only 
go  to  the  extent  of  giving  his  impression  as  to  it.    The  chances 

that  the  court  may,  in  its  discretion,  exclude  the  witness'  testimony 
entirely. 

6  Mcintosh  V.  Mcintosh,  70  Mich.  198,  203,  44  N.  W.  592. 

7  State  V.  Ward,  61  Vt.  153,  179,  17  Atl.  483. 

8  Maxwell's  Ex'rs  v.  Wilkinson,  113  U,  S.  6.16,  5  Sup.  Ct.  601,  28  L. 
Ed.  1037.  In  Alcock  v.  Assurance  Co.,  13  Adol.  &  E.  (N.  S.)  292,  a 
witness  under  examination  on  a  commission  answered  a  general 
question  as  to  his  acquaintance  with  the  facts  in  controversy  by  sub- 
mitting a  written  statement,  which  he  had  previously  made.  Upon 
the  introduction  of  the  deposition  of  the  witness  at  the  trial,  it 
was  held  that  this  paper  was  properly  excluded. 


§  244)  REFRESHING   MEMORY   OF  WITNESS.  391 

are  that  all  mean  the  same.  Knowledge  consists  of  an  impres- 
sion on  the  senses ;  and  when  the  circumstances  show,  as  they 
usually  will,  that  what  a  witness  calls  an  impression  is  not  an 
opinion  based  on  information,  but  the  result  of  his  own  observa- 
tion, such  impression  is  admissible.  As  has  been  said:  "No 
line  can  be  drawn  for  the  exclusion  of  any  record  left  upon 
the  memory  as  the  impress  of  personal  knowledge  because  of 
the  dimness  of  the  inscription."  ^  And  a  witness'  knowledge, 
however  uncertain,  may  always  be  introduced  for  what  it  is 
worth.io 

With  certain  persons  physical  disability  requires  answers  to 
be  either  written  or  made  by  signs,  as  in  the  case  of  deaf 
mutes.^^ 


REFRESHING   MEMORY   OF   WITNESS. 

244.  The  attention  of  a  witness  may  be  called  to  written  or 
printed  statements  or  memoranda,  either  made  by  him- 
self or  with  which  he  has  been  in  some  way  connect- 
ed, for  the  purpose  of  refreshing  his  memory 

It  frequently  happens  that  in  cases  where  there  is  a  large 
amount  of  detail,  such  as  figures,  accounts,  plans,  and  specifica- 
tions, a  witness  is  permitted  to  refer  to  a  paper,  and  the  paper 
is  perhaps  put  in  as  representing  the  correct  statement  of  the 
facts.  This  is,  however,  only  for  convenience  in  getting  details 
which  the  witness  might  give  orally,  if  allowed  the  time,  in 
proper  shape  before  the  court.  In  such  matters  the  written 
statement  contains  what  the  witness  would  testify  orally  if 
questioned  in  detail  and  at  length,  and  is  admitted  usually  by 
consent,  or  at  least  without  objection,  for  the  purpose  of  sav- 
ing time.^2  This  is  not,  however,  the  sort  of  thing  that  is  re- 
ferred to  when  we  speak  of  "refreshing  memory."    In  the  case 

9  Sawyer,  J.,  in  State  v.  Flanders,  38  N.  H.  324,  332. 

10  State  V.  Flanders,  supra ;    Humphries  v.  Parlier,  52  Me.  502. 

11  Dobbins  v.  Electric  Co.  (Ark.)  95  S.  W.  704. 

12  In  Blandy's  Case,  18  How.  St.  Tr.  1118,  1138,  a  written  descrip- 
tion of  the  appearance  of  the  organs  of  the  body,  made  by  an  expert 
at  the  time  of  an  autopsy,  was  allowed  to  be  read  by  the  expert.  In 
Culver  V.  Marks,  122  Ind.  554,  566,  23  N.  E.  1086,  7  L.  R.  A.  489,  17 


o92;  EXAMINATION    OF   WITNESSES.  (Ch.  13 

of  a  paper  used  to  refresh  memory  the  contents  of  the  paper 
are  not  admitted  as  what  the  witness  would  testify  if  questioned 
orally.  The  paper  may  contain  matters  entirely  different  from 
the  facts  which  it  suggests  to  the  witness'  mind,  and  to  which 
he  will  testify.  It  need  not  be  a  paper  which  the  witness  him- 
self has  written.^'  The  idea  is,  that  it  is  in  the  nature  of  a  sug- 
gestion to  the  witness'  mind ;  that  it  excites  a  recollection,  so 
that  he  can  then  testify  from  independent  memory  that  the  facts 
stated  in  the  document,  or  the  facts  which  are  suggested  to 
his  mind  by  it,  are  true.^*  If  the  writing  is  not  only  not  in  the 
witness'  handwriting,  but  is  one  which  he  has  never  seen  be- 
fore, it  is  obvious  that  it,  as  a  writing,  cannot  refresh  his  recol- 
lection ;  for,  if  he  has  never  seen  it,  it  can  recall  nothing  to  his 
mind.  What  it  contains,  however,  may  suggest  to  his  mind 
facts  of  which  he  may  have  lost  sight.  In  this  view  it  is  like 
a  leading  question,  which  suggests  matter  to  the  witness'  mind 
in  the  same  way.^^ 

The  effect  of  the  submission  of  a  paper  or  memorandum  to  a 
witness  may  be  either  (1)  to  excite  in  his  mind  an  independent 
recollection  of  the  facts  to  which  the  paper  refers  or  with  which 
it  is  connected,  or  (2)  to  convince  the  witness  that  the  facts 
stated  in  the  paper  are  true,  by  reason  of  a  previous  connection 
on  the  part  of  the  witness  with  the  paper.    It  is  obvious  that  the 

Am.  St.  Rep.  377,  an  expert  accountant's  statement,  made  from  his 
examination  of  account  books,  was  admitted. 

13  Com.  V.  Ford,  130  Mass.  64,  39  Am.  Rep.  426;  Davis  v.  Field,  56 
Vt.  426;  Burrough  v.  Martin,  2  Camp.  112;  HnfC  v.  Bennett,  6  N. 
Y.  337.  In  tlie  latter  case  the  com-t  say  (page  339):  "It  was  insisted 
that  the  rule  was  that  a  witness  conld  only  testify  to  such  facts  as 
were  within  his  knowledge,  and  that  his  recollection  of  the  facts 
could  only  be  refreshed  by  examining  memoranda  either  made  by 
himself  or  in  his  presence.  Although  the  rule  is  that  a  witness  in  gen- 
eral can  testify  only  to  such  facts  as  are  within  his  own  knowledge 
and  recollection,  yet  it  is  well  settled  that  he  is  permitted  to  assist 
his  memory  by  the  use  of  any  written  instrument,  memorandum,  or 
entry  in  a  book,  and  it  is  not  necessary  that  such  writing  should  have 
been  made  by  the  witness  himself,  or  that  it'  should  be  an  original 
writing,  provided,  after  inspecting  it,  he  can  speak  to  the  facts  from 
his  own  recollection." 

14  Com.  V.  Jeffs,  132  Mass.  5. 

15  In  Massachusetts  it  is  held  that  such  a  paper  is  not  admissible 
to  refresh  recollection.     Davis  v.  Allen,  9  Gray  (Mass.)  322,  .328. 


S  244)  REFRESHING   MEMORY    OF   WITNESS.  393 

first  effect  in  no  wise  distracts  from  the  witness'  possession  as  a 
witness  to  the  facts.  He  testifies  that  the  facts  are  true,  be- 
cause he  remembers  them.  The  second  effect,  on  the  con- 
trary, takes  from  him  his  character  as  a  witness  to  the  facts, 
and  leaves  him  in  the  position  of  simply  identifying  a  previous 
unsworn  statement  made  by  him,  and  giving  his  inference  as 
to  its  truthfulness.  He  is  of  opinion  that  the  facts  stated  are 
true  because  he  wrote  the  statement,  or  saw  it  written,  or  read 
it  over,  and  signed  it  at  the  time.  The  use  of  a  paper  when  it 
produces  effect  (1)  is  legitimate,  and  in  accordance  with  the  gen- 
eral scheme  for  the  examination  of  witnesses  adopted  by  our 
courts.  It  introduces  no  new  element  into  the  situation  as  be- 
tween examining  counsel,  witness,  and  jury.  The  use  of  a  pa- 
per when  effect  (2)  is  produced  is  a  distinct  innovation.  It  is 
practically  the  substitution  of  a  written  statement  for  the  oral 
testimony  which  our  practice  calls  for.  Further  than  this,  it  is 
a  virtual  deprivation  of  the  right  of  cross-examination  to  the 
party  against  whom  the  testimony  is  offered  ;  for,  if  the  witness 
has  no  recollection  of  the  facts  themselves,  he  can,  strictly 
speaking,  neither  be  examined  nor  cross-examined  in  reference 
to  them.  He  has  left  the  stand,  and  in  his  place  is  the  unsworn 
statement,  made  at  a  time  when  there  was  no  opportunity  for 
cross-examination.  The  cases  are  in  conflict  upon  the  admis- 
sion of  papers  where  they  do  not  serve  to  refresh  the  recollec- 
tion. It  must  be  conceded  that  there  are  many  cases  of  diffi- 
culty, where  it  is  hard  to  distinguish  between  independent  recol- 
lection excited  by  a  paper  and  conviction  of  the  truthfulness  of 
its  statements,  induced  by  circumstances  connected  with  it. 
Especially  do  these  cases  arise  where  the  facts  contained  in  the 
paper  are  of  a  formal  and  routine  character.  In  such  cases  the 
courts  have  been  disposed  to  give  a  liberal  construction  to  the 
"refreshing  of  memory."  Doubtless  this  accords  with  a  prac- 
tical and  business-like  administration  of  justice  where  commer- 
cial and  business  matters  are  involved. 

Closely  allied  to  these  cases  are  those  where  the  existence  of 
the  memorandum  itself,  when  taken  in  connection  with  circum- 
stances shown  to  have  attended  its  making,  is  a  piece  of  circum- 
stantial evidence  of  the  facts  stated.  For  example,  where  a 
memorandum  or  entry  is  made  as  a  part  of  the  regular  routine 
of  business,  and  it  is  shown  that  there  was  a  routine  followed 


394  EXAMINATION   OF   WITNESSES.  (Ch.  13 

which,  on  the  happening  of  fact  A,  would  require  the  making 
of  an  entry,  then  the  very  fact  that  the  entry  exists,  and  was 
made  by  the  proper  person  at  the  proper  time,  is  circumstantial 
evidence  of  the  fact  to  which  it  relates.  In  such  cases,  though 
the  witness  be  unable  to  recollect  the  happening  of  the  fact, 
there  is  good  ground  for  the  admission  of  the  memorandum.^® 
The  witness'  testimony  that  he  knows  the  fact  happened  because 
he  made  the  memorandum  is  superfluous.  Such  statement  adds 
little,  if  any,  to  the  force  of  the  inference  which  the  jury  itself 
must  draw  from  the  circumstances  proved. 

But  the  courts  have  in  some  instances  gone  a  step  further, 
and,  arguing  from  the  cases  above  referred  to,  without  a  due 
consideration  of  the  real  reason  for  the  admissibility  of  the  evi- 
dence, have  reached  the  conclusion  that  a  witness  may  testify  to 
facts  stated  in  a  writing  shown  him  in  connection  with  the  intro- 
duction of  the  paper,  though  he  have  no  recollection  of  the 
facts,  and  the  circumstances  surrounding  the  making  of  the 
writing  are  not  shown  to  be  such  as  make  it  circumstantial 
evidence.^  ^ 

16  It  is  mainly  on  cases  of  this  cliaracter  that  Greenleaf  bases  his 
statement  of  the  doctrine  with  reference  to  this  subject,  though  they 
scarcely  justify  the  form  in  which  he  states  it.  He  says,  in  enumer- 
ating the  classes  of  cases  where  writings  may  be  used  (1  Greenl.  Ev, 
§  437):  "(2)  Where  the  witness  recollects  having  seen  the  writing 
before,  and  though  he  has  now  no  independent  recollection  of  the 
facts  mentioned  in  it,  yet  he  remembers  that  at  the  time  he  saw  it 
he  knew  the  contents  to  be  correct.  *  *  *  (3)  Where  the  writing 
in  question  neither  is  recognized  by  the  witness  as  one  which  he  re- 
members to  have  before  seen,  nor  awakens  his  memory  to  the  recol- 
lection of  anything  contained  in  it,  but,  nevertheless,  knowing  the 
writing  to  be  genuine,  his  mind  is  so  convinced  that  he  is  on  that 
ground  enabled  to  swear  positively  as  to  the  fact." 

17  Haven  v.  Wendell,  11  N.  H.  112;  State  v.  Rawls,  2  Nott  &  McC. 
(S.  C.)  331.  Such,  also,  was  the  case  of  Martin  v.  Good,  14  Md.  398, 
74  Am.  Dec.  545,  where,  upon  the  question  of  the  terms  of  an  agree- 
ment between  partners,  a  clerk  was  permitted  to  testify  from  a  mem- 
orandum which  he  testified  was  in  his  handwriting,  though  he  had 
no  recollection  of  the  facts  stated  in  the  memorandum,  or  of  the  cir- 
cumstances under  which  he  made  it;  he  having  testified  that  he 
would  not  have  written  anything  that  was  not  right,  and  had  no 
doubt  the  paper  contained  a  correct  statement.  The  court,  in  reach- 
ing its  conclusion,  relied  upon  Greenleaf's  statement  of  the  doctrine, 
quoted  in  note  16,  and  also  upon  such  cases  as  Maugham  v.  Hubbard, 


245)  REFRESHING   MEMORY   OF   WITNESS.  395 


SAME— ADMISSIBILITY   OF   PAPERS   USED    TO   REFRESH 

RECOLLECTION. 

245.  In  tlie  case  of  papers  used  to  refresh  the  recollection  the 
general  doctrine  is  that  the  papers  themselves  must 
be  produced  for  inspection  and  cross-examination  of 
the  ^Fitness  thereupon,  and  that  they  may  be  admit- 
ted in  evidence  vehere  the  \pitness  cannot  testify  en> 
tirely  independently   of   them. 

The  prevailing  doctrine  is  that  the  court,  jury,  and  counsel 
should  be  permitted  to  inspect  any  paper  which  the  witness  uses 
to  aid  him  in  the  giving  of  his  testimony.^^  In  the  interest  of 
fair  play,  a  witness  should  not  be  permitted  to  refresh  his  mem- 
ory while  on  the  stand,  unless  opposing  counsel  has  the  op- 
portunity to  cross-examine  him  as  to  the  method  by  which  he 
does  it.  Then,  too,  testimony  given  under  such  circumstances 
will  be  apt  to  be  misconceived  by  the  jury  unless  they  have  be- 
fore them  the  paper  to  which  the  witness  has  referred,  and 
concerning  which  he  has  been  cross-examined.  While  papers 
used  to  refresh  recollection  are  ordinarily  produced  and  in- 
spected at  the  time  of  the  witness'  use  of  them,  it  is  not  always 
that  they  have  been  permitted  to  be  made  a  part  of  the  evidence 
in  the  case.  The  distinction,  in  its  practical  results,  is  rather 
a  shadowy  one.  A  paper  before  the  court  and  jury  while  the 
witness  is  being  examined  and  cross-examined,  and  which  has 
been  made  the  subject  of  such  examination,  is  not  likely  to  mis- 
lead the  jury  if  admitted  in  evidence  as  explanatory  of  the  wit- 
ness' testimony.  It  has  been  held,  however,  that  when  the  wit- 
ness has  an  independent  present  recollection  the  paper  will  not 
be  admitted,^ ^  while,  if  his  present  recollection  is  uncertain  and 

8  Barn.  &  C.  14,  and  Merrill  v.  Railroad  Co.,  16  Wend.  (N.  Y.)  586, 
30  Am.  Dec.  130,  in  both  of  which  the  question  arose  as  to  entries, 
the  making  of  which  was,  in  itself,  circumstantial  evidence.  In  the 
latter  case  the  entry  was  one  made  in  the  regular  course  of  business. 

18  Steph.  Dig.  Ev.  art.  137;  Peck  v.  Valentine,  94  N.  Y.  569.  per 
Andrews,  J.  (page  571) ;  Cortland  Mfg.  Co.  v.  Piatt,  S3  Mich.  419,  42S. 
47  N.  W.  330 ;   McKivitt  v.  Cone,  30  Iowa,  455. 

19  Yicksburg  &  M.  R.  R.  v.  O'Brien.  110  U.  S.  90.  102.  7  Sup.  Ct. 
118,  30  L.  Ed.  299;  Peck  v.  Valentine,  94  N.  Y.  .569;  Kelsea  v. 
Fletcher,  48  N.  H.  282;    Taft  v.  Little,  178  N.  Y.  127,  70  N.  E.  211; 


396  EXAMINATION    OF   WITNESSES.  (Ch.  13 

indefinite  without  t^e  use  of  the  paper,  and  he  therefore  testi- 
fies from  his  conviction  as  to  the  correctness  of  the  paper,  it 
will  be  admitted.  ^° 


DECEPTION   OF   COURT   BY   -WITNESS. 

246.    In   case   a   witness   is  guilty   of  deceiving   the   court,   his 
testimony  may  be  disregarded. 

The  way  in  which  a  question  of  this  sort  usually  arises  is  in 
reference  to  the  capability  of  the  witness  to  understand  or  speak 
the  English  language.  A  witness  desiring  to  give  false  testi- 
mony would  find  it  a  great  advantage  to  have  the  delay  incident 
upon  the  employment  of  an  interpreter.  The  question  of  the 
necessity  of  an  interpreter  is  one  which  the  court  must  decide 
upon  the  statement  of  the  witness  himself.  If  the  court  knows 
that  the  witness  can  speak  English,  although  the  witness  denies 
it,  he  may  refuse  to  allow  an  interpreter.  If,  however,  the  wit- 
ness deceives  the  court  in  this  respect,  and  the  deception  is 
afterwards  discovered,  the  only  remedy  is  by  rejecting  the  tes- 
timony entirely. 

DIRECT   EXAMINATION. 

247.  The  initial  examination  of  a  witness  by  the  party  call- 
ing him  is  known  as  the  direct  examination.  The  di- 
rect examination  must  cover  all  of  the  facts  mrhich  the 
party  expects  to  elicit  from  the  witness. 

The  examination  of  a  witness  takes  the  shape  of  successive 
questioning,  first  by  the  party  producing  him,  and  then  by  the 

Bailey  v.  Warner,  118  Fed.  395,  55  C.  C.  A.  329;  Welch  &  Co.  v. 
Greene,  24  R.  I.  515,  54  Atl.  54.  In  this  case  the  witness  was  allowed 
to  iise  copies,  since  they  were  not  to  be  introduced,  but  only  to  re- 
fresh the  mind. 

20Halsey  v.  Sinsebaugh,  15  N.  Y.  485;  State  v.  Jordan.  110  N.  C. 
491,  14  S.  E.  752.  In  People  v.  McLaughlin,  150  N.  Y.  365,  392,  44 
N.  E.  1017,  the  rule  is  stated  as  follows:  "An  original  entry  or  a 
memorandum  made  by  a  witness  at  the  time  of  a  transaction  is  ad- 
missible in  evidence  as  auxiliary  to  his  testimony  only  when  without 
its  aid  he  is  unable  to  distinctly  recollect  the  fact  to  which  it  re- 
lates."    Volusia  County  Bank  v.  Bigelow,  45  Fla.  038,  33  South.  704. 


248)  LEADING    QUESTIONS. 


397 


opposing  party.  The  parties  thus  alternate  in  eHciting  facts. 
Theoreticahy  each  party  is  supposed  to  complete  his  examina- 
tion at  one  time  ;  a  single  witness  is  to  be  questioned  by  the  par-' 
ty  whose  case  he  is  called  to  support  until  all  the  desired  facts 
have  been  brought  out,  and  then  taken  in  hand  by  the  opposing 
party  for  the  purpose  of  cross-examination.  As  a  matter  of 
fact,  a  witness  rarely  leaves  the  stand  without  several  further 
stages  having  been  added  to  his  examination.  The  human 
mind  is  not  built  on  Hues  which  make  it  possible  to  systematize 
the  examination  of  a  witness  to  a  degree  that  will  cover  every 
point  in  a  satisfying  way  upon  a  single  questioning.  The  cross- 
examination  in  almost  every  case  brings  out  matter  requiring 
further  explanation,  or  suggests  matters  omitted  in  the  direct 
examination,  which  should  be  put  before  the  jury.  The  result 
is  that  the  witness  is  usually  examined  again  by  the  party  pro- 
ducing him,  and  frequently  alternately  by  the  opposing  parties 
for  a  number  of  times.  In  the  ordinary  case  we  have  the  di- 
rect and  cross-examination,  a  redirect  examination,  and  a  re- 
cross-examination  ;  and  quite  frequently  the  alternate  question- 
ing is  prolonged  through  several  further  stages  without  char- 
acterizing them  by  any  special  name. 

LEADING   QUESTIONS. 

248.    Upon  the  direct  examination  of  a  witness  leading  ques- 
tions  will   not  be   allowed. 

The  rule  respecting  leading  questions  is  one  of  the  most  fre- 
quently applied  of  any  of  the  rules  governing  the  conduct  of  the 
examination  of  witnesses.  A  leading  question  means  what  its 
name  indicates, — one  which  leads  the  witness  up  to  the  desired 
answer ;  i.  e.,  one  which  is  put  in  such  a  way  as  to  suggest  to 
the  witness  the  answer  which  is  expected  or  wanted.'^  There 
is  no  particular  form  which  will  make  a  question  leading,  or 
will  save  it  from  being  such.     The  fact  that  a  question  is  put 

21  1  Greenl.  Ev.  §  434;  People  v.  Mather,  4  Wend.  (N.  Y.)  229,  21 
Am.  Dec.  122,  opinion  of  Marcy,  J.  (pages  247-249.  of  4  Wend.); 
Osborn  v.  Forshee,  22  Mich.  209;  Prather  v.  Railroad  Co.,  221  111. 
190,  77  N.  E.  430. 


398  EXAMINATION   OF   WITNESSES.  (Ch.  13 

SO  as  to  require  a  categorical  answer  does  not  necessarily  make 
it  leading,  though  it  may  do  so ;  nor  does  the  fact  that  a  ques- 
tion is  prefaced  by  "whether  or  not,"  so  as  to  avoid  a  categori- 
cal answer,  save  it  from  being  leading.^^ 


SAME— APPLICATION   OF  RULE. 

249.  The  rnle  against   leading   questions   only  applies   where 

the   examination   relates    to   material    facts. 

Leading  questions  may  be  put  in  the  preliminary  examination 
of  a  witness  for  the  purpose  of  bringing  him  quickly  to  the  mat- 
ters in  issue. ^^  The  use  of  leading  questions  for  this  purpose 
is  a  matter  of  convenience.  There  can  be  no  possible  harm  in 
suggesting  to  the  witness  the  preliminary,  and  sometimes  mere- 
ly formal,  matter  which  every  witness  is  usually  desired  to  state, 
such  as  residence,  occupation,  business  relations,  connection 
with  the  suit  and  parties,  and  then  bringing  his  mind  to  bear 
on  the  particular  line  of  facts  concerning  which  he  is  called  to 
testify.^*  This  is,  therefore,  allowable ;  always,  however,  sub- 
ject to  the  discretion  of  the  judge  as  to  the  proper  limitations. 

SAME— IN  CASE   OF  HOSTILE  "WITNESS. 

250.  Where  it  is  necessary  to  call  a  witness  knoivn  to  be  hos- 

tile to  the  party  calling  him,  the  rule  forbidding  lead- 
ing  questions   does  not   apply. 

2  2  Best,  Bv.  §  641;  Willis  v.  Quimby,  31  N.  H.  485,  490.  In  Peo- 
ple V.  Mather,  supra,  the  following  question  was  held  to  be  leading: 
"State  whether  or  not  you,  in  substance  or  effect,  addressed  the  de- 
fendant as  one  of  those  concerned  in  the  transaction."  It  was  then 
changed  to  "How  did  you  address  the  defendant  in  respect  to  his 
being  one  of  the  persons  concerned,"  and  still  held  to  be  leading. 

2  3  Cheeney  v.  Arnold,  18  Barb.  (N.  Y.)  434,  438;  Hopper  v.  Com.,  6 
Grat.  (Va.)  684. 

2  4  In  De  Haven  v.  De  Haven,  77  Ind.  236,  the  following  question 
was  allowed,  as  merely  directing  the  witness'  attention  to  the  sub- 
ject about  which  his  testimony  was  desired:  "State  what  you  know 
if  anything  about  your  father  ever  recognizing  Betsy,  that  after- 
wards married  Davis  and  afterwards  Hamilton,  as  his  child." 


§  250)  LEADING   QUESTIONS.  399 

The  examination  of  an  adverse  party  sometimes  becomes 
necessary,  in  which  case  it  need  not  be  confined  to  the  Hmits  of 
the  ordinary  direct  examination.  As  such  a  witness  will  not  be 
disposed  to  state  anything  favorable  to  his  opponent,  if  he  can 
help  it,  it  is  allowable  to  elicit  the  facts  desired  by  the  use  of 
leading  questions.^ ^  In  fact,  the  examination  under  the  cir- 
cumstances partakes  of  the  character  of  a  cross-examination. 
The  relaxation  of  the  rule  is  usually  carried  to  the  extent  of 
allowing  such  questions  in  any  case  where  the  witness  appears 
to  be  generally  hostile,  whether  or  not  a  necessary  witness, 
and  whether  or  not  he  was  known  to  be  hostile  when  called. 
A  witness  who,  on  the  stand  gives  his  testimony  in  a  manner 
at  variance  with  his  statement  of  the  facts  made  before  trial 
to  the  party  calling  him  becomes  a  hostile  witness,  and,  though 
not  a  necessary  witness,  if  the  party  was  justified  in  calling  him, 
and  has  done  so  in  good  faith,  he  will  not  be  bound  to  adhere 
to  the  ordinary  rules  of  direct  examination.^"  And  even  in  the 
examination  of  a  friendly  witness,  where  he  seems  to  have  for- 
gotten some  material  point,  it  may  be  suggested  to  his  mind 
in  the  form  of  a  leading  question.^'' 

2B  In  Becker  v.  Koch,  104  N.  Y.  394,  401,  10  N.  E.  701,  58  Am.  Rep. 
515,  it  is  said:  "An  adverse  witness  may  be  cross-examined,  and 
leading  questions  may  be  put  to  him  by  the  party  calling  him,  for  the 
very  sensible  and  sufficient  reason  that  he  is  adverse,  and  that  the 
danger  arising  from  such  a  mode  of  examination  by  the  party  call- 
ing a  friendly  or  unbiased  witness  does  not  exist."  See,  also,  Bru- 
baker's  Adm'r  v.  Taylor,  76  Pa.  83. 

2  6  State  V.  Benner,  64  Me.  267,  280;  Severance  v.  Carr,  43  N.  H. 
65 ;  Bradshaw  v.  Combs.  102  111.  428,  434 ;  Zilver  v.  Graves  Co.,  106 
App.  Div.  582,  94  N.  Y.  Supp.  714. 

2  7  Moody  v.  Rowell,  17  Pick.  (Mass.)  490,  28  Am.  Dec.  317,  per 
Shaw,  C.  J.  (page  498,  of  17  Pick.) ;  Huckins  v.  Insurance  Co.,  31  N. 
H.  238,  247.  In  Herring  v.  Skaggs,  73  Ala.  446,  the  question  of  the 
metal  of  which  a  safe  was  represented  to  be  made  becoming  material, 
and  a  witness  having  testified  that  during  the  negotiations  for  the 
sale  of  the  safe  he  was  present,  and  heard  the  agent  state  what  the 
metal  was,  and  at  the  same  time  saw  him  exhibit  a  piece  of  the  met- 
al, but  could  not  state  the  name  by  which  the  agent  called  the 
metal,  the  following  question  was  permitted:  "Was  the  name,  by 
which  Stewart  called  the  metal,  'spiegel  eisin'?"  It  has  been  held 
that  children  of  tender  years  who  are  put  upon  the  stand  should  not 
be  asked  leading  questions,  even  where  such  questions  would  be 
permitted  in  case  of  adults,  on  the  ground  that  they  are  much  more 


400  EXAMINATION    OF   WITNESSES.  (Ch.  13 


IMPEACHING   ONE'S    OW^N   W^ITNESS. 

251.  A  party,  upon  the  examination  of  his  o\(rn  uritness,  can- 

not ask   questions  for  the  purpose  of  discrediting  his 
testimony. 

252.  Nor  can  he  impeach  his  testimony  by  evidence  from  any 

other  ivitnesses,   either  as  to  veracity  of  previous  in- 
consistent statements. 

253.  Hut  he  may  prove  any  material  fact  in  the  case  by  oth- 

er witnesses,   even   though  the   effect  be   to   contradict 
his  oivn  tvitness. 

It  is  a  well-recognized  principle  that  one  who  offers  a  witness 
presents  him  as  worthy  of  belief.^ ^  Upon  this  is  founded  the 
rule  which  forbids  a  party  from  impeaching  his  own  witness. 
It  has  always  been  recognized,  however,  that  the  rule  is  a  loose 
one,  and  subject  to  many  exceptions,  to  be  applied  by  the  court 
in  its  discretion,  where  it  will  tend  to  the  preservation  of  a 
proper  attitude  between  parties  and  their  witnesses.  In  other 
words,  where  a  witness  is  honest,  and  acting  in  entire  good 
faith  towards  the  party  producing  him,  the  mere  fact  that  he 
does  not  testify  to  the  facts  as  expected,  or  that  he  remembers 
the  facts  differently  at  the  trial  than  he  has  previously  stated 
them,  does  not  justify  the  party  in  seeking  to  show  that  he  is 
false,  or  unworthy  of  belief.  What  the  court  requires  is  that 
the  party  shall  place  the  same  faith  in  his  witness  that  he  asks 
on  the  part  of  the  court ;  and  unless  it  is  apparent  to  the  court 
that  the  conduct  of  the  witness  in  the  trial  justifies  the  infer- 
ence that  he  has  intentionally  deceived  the  party  calling  him, 
and  is  taking  an  unfair  advantage  of  his  position,  the  rule  will 
be  enforced. ^^     A  party  cannot,  therefore,  seek  to  strengthen 

likely  to  be  misled,  and  to  answer  as  suggested  by  the  questions. 
Coon  V.  People,  99  111.  368,  39  Am.  Rep.  28. 

2  8  1  Greenl.  Ev.  §  442.  In  Cross  v.  Cross,  108  N.  Y.  628.  15  N.  E. 
333,  the  plaintiff  called  the  defendant  as  a  witness.  While  it  was 
held  that  the  plaintiff  was  not  bound,  on  account  of  making  him  his 
own  witness,  by  all  the  facts  to  which  he  testified,  it  was  said  by  the 
court  that  the  plaintiff  could  not  have  introduced  testimony  to  im- 
peach his  testimony. 

29  State  V.  Burks,  132  Mo.  .363.  .369,  34  S.  W.  48;  McDaniel  v. 
State,  53  Ga.  253 ;   People  v.  Jacobs,  49  Cal.  384. 


§§  251-253)     IMPEACHING  one's  own  witness.  401 

the  testimony  of  a  witness  at  the  trial  by  showing  by  him  that 
he  has  made  previous  statements  to  the  same  effect  as  his  tes- 
timony.^'' It  may  happen  that  the  witness  has  made  previous 
statements  which  are  inconsistent  with  his  testimony  as  given 
at  the  trial.  These  cannot  be  shown  either  by  questioning  the 
witness  himself  as  to  them  or  by  calling  other  witnesses.^^ 
There  is,  however,  nothing  in  the  rule  which  prevents  a  party 
from  proving  his  case  in  the  ordinary  way,  and,  if  one  witness 
swears  to  facts  which  it  is  necessary  for  a  party  to  prove  other- 
wise to  support  his  case,  he  may  always  do  so.  It  is  true  that 
the  incidental  effect  of  this  is  to  contradict  his  own  witness,  but 
this  is  not  the  purpose  of  the  proof,  and  as  long  as  it  is  ma- 
terial upon  issues  in  the  case  it  is  admissible. ^^  There  are  cases 
where  a  party  has  been  permitted  to  call  a  witness'  attention  to 
previous  statements  made  by  him  inconsistent  with  his  present 
testimony.  This  is  where  it  is  done  for  the  purpose  of  suggest- 
ing to  the  witness'  mind  the  facts  as  he  has  previously  stated 
them,  in  order  to  refresh  his  memory,  and  thus  get  at  the  truth.^=^ 

3  0  Deshon  v.  Insurance  Co.,  11  Mete.  (Mass.)  199,  209. 

31  Sanchez  v.  People,  22  N.  T.  147;  People  v.  Safford,  5  Denio 
(N.  Y.)  112 ;  Com.  v.  Welsh,  4  Gray  (Mass.)  .5.35 ;  Fisher  v.  Hart.  149 
Pa.  232,  24  Atl.  225 ;  Howard  v.  State,  32  Ind.  478 ;  In  re  Kennedy's 
Estate,  104  Cal.  429,  38  Pac.  93. 

32  Thompson  v.  Blanchard,  4  N.  Y.  303,  311;  Hall  v.  Houghton,  37 
Me.  411;  Olmstead  v.  Winsted  Bank,  32  Conn.  278,  85  Am.  Dec. 
260 ;  Rockwood  v.  Poundstone,  38  111.  199 ;  Perry  v.  Massey,  1  Bailey 
(S.  C.)  32;  Clapp  v.  Peck,  55  Iowa,  270,  7  N.  W.  587:  Melhuish  v. 
Collier,  15  Adol.  &  E.  (N.  S.)  878,  889,  per  Coleridge,  J.  In  Perry 
V.  Massey,  supra,  the  facts  were  as  follows:  A.  sued  X.  for  money 
loaned.  X.  alleged  payment.  On  the  trial  X.  called  W.,  the  agent 
of  A.,  to  prove  payment  to  him  as  agent.  W.  unexpectedly  testified 
that  the  payment  made  to  him  was  on  account  of  another  debt.  X. 
was  then  permitted  to  show  by  other  witnesses  that  W.  had  previ- 
ously admitted  that  the  payment  was  on  account  of  the  debt  to  A. 
aiissispippi  Glass  Co.  v.  Franzer.  143  Fed.  501,  74  C.  C.  A.  135. 

3  3  Bullard  v.  Pearsall,  53  N.  Y.  230;  Hildreth  v.  Aldrich,  15  R.  I. 
163,  1  Atl.  249 ;  Howard  v.  State,  32  Ind.  478 ;  Hall  v.  Chicago,  R.  I. 
&  P.  Ry.  Co.,  &4  Iowa,  311,  316,  51  N.  W.  150 ;  Melhuish  v.  Collier, 
15  Adoi.  &  E.  (N.  S.)  878,  887.  In  Bullard  v.  Pearsall,  supra,  M.,  a 
witness,  was  called  by  the  plaintiff  to  prove  that  a  certain  conversa- 
tion took  place  between  witness  and  defendant  prior  to  the  17th  of 
July.  To  the  plaintiff's  surprise,  M.,  testified  that  the  conversation 
took  place  on  July  24th.     The  plaintiff  may  ask  the  witness  if  he 

m'kelv.ev.(2d  ED.)— 26 


402  EXAMINATION    OF   WITNESSES.  (Ch.  13 

Such  line  of  examination  is  carefully  guarded  and  will  not 
be  allowed  to  degenerate  into  hostile  examination  to  contradict 
the  witness.^* 


SAME— EXCEPTION  TO  RULE. 

254.  In  tlie  examination  of  an  adverse  or  necessary  Tpitness 
it  is  tlie  better  opinion  that  evidence  may  be  offered 
to  impeacb  bis  veracity. 

This  is  in  line  with  the  suggestion  above  set  forth,  and,  while 
it  is  not  universally  accepted,  it  seems  correct  on  principle.  In 
many  kinds  of  cases  where  facts  necessary  to  the  proving  of  a 
party's  case  are  solely  within  the  knowledge  of  an  adverse  par- 
ty, such  as  4n  many  cases  where  fraud  is  charged,  a  party  might 
often  be  left  with  no  means  of  proving  his  case  if  he  were  con- 
fined to  the  limitations  of  an  ordinary  direct  examination,  and 
were  precluded  from  questioning  the  statements  made  by  the 
witness. ^^    It  is  all  a  question  of  what  is  fair  and  right  for  best 

did  not,  on  a  prior  occasion,  say  tlie  conversation  tooli  place  prior  to 
the  17th.  Hunt  v.  City  of  Boston,  152  Mass.  168,  25  N.  E.  82; 
Stearns  v.  Merchants'  Bank,  53  Pa.  490.  Compare  with  this  case 
People  V.  Safford,  5  Denio  (N.  Y.)  112,  where,  on  a  prosecution  of  X. 
for  illegally  selling  liquor,  B.  was  called  as  a  witness  by  the  prosecu- 
tion, having  testified  before  the  grand  jury  that  he  had  purchased 
brandy  from  X.  on  several  occasions.  B.  having  failed  to  give  his  tes- 
timony on  the  trial  as  expected,  and  having  stated  that  he  did  not 
recollect  purchasing  any  liquor  from  X.,  the  prosecution  was  per- 
mitted to  ask  him,  and  to  prove  by  him,  what  he  testified  to  before 
the  grand  jury.  It  was  held  that  this  was  erroneous,  as  the  only 
purpose  of  the  question  and  the  effect  of  the  evidence  was  to  dis- 
credit the  witness.  See,  however,  Villineuve  v.  Railway  Co.,  73  N.  H. 
250,  60  Atl.  748,  where  a  deposition  taken  previously  stated  facts 
opposite  to  the  testimony  given  on  the  stand  by  witness,  and  it  was 
held  error  not  to  allow  examination  of  witness  as  to  the  facts  stated 
in  deposition. 

3  4  People  V.  Safford,  5  Denio  (N.  Y.)  112;  Hall  v.  Railway  Co.,  84 
Iowa,  311,  316,  51  N.  W.  150. 

3  5  In  Becker  v.  Koch,  104  N.  Y.  394,  10  N.  E.  701,  58  Am.  Rep.  515, 
the  action  was  by  A.,  as  assignee,  against  X.,  the  sheriff,  to  recover 
possession  of  property  covered  by  the  assignment,  which  X.  had 
seized  under  an  attachment.  X.  claimed  the  assignment  was  fraud- 
ulent as  to  creditors.    X.  called  M.,  the  assignor,  as  a  witness,  and 


§  254)  IMPEACHING   one's   OWN    WITNESS.  403 

arriving  at  the  true  facts  in  the  case,  and  rests  in  the  sound 
discretion  of  the  court.^* 

Where  a  party  is  under  the  necessity  of  calling  a  particular 
person  as  a  witness,  he  is  not  bound  by  the  ordinary  rule  as  to 
impeaching  his  testimony.  Such  a  case  arises  in  the  case  of 
proof  of  a  deed  by  the  subscribing  witness. 


37 


M.  gave  testimony  which  tended  to  show  the  general  assignment  was 
not  fraudulent.  The  court  held  that  the  defendant  was  boimd  by  the 
testimony,  and  directed  a  verdict  for  the  plaintiff.  On  appeal  it  was 
held  that  this  was  erroneous.  The  court,  per  Peckham,  J.,  say  (page 
401  of  104  N.  Y.,  page  703  of  10  N.  E.  [58  Am.  Rep.  515]):  "Some- 
times rather  loose  language  has  been  indulged  in  to  the  general  effect 
that  a  party  cannot  impeach  his  own  witness,  but  when  an  examina- 
tion is  made  as  to  the  limits  of  the  rule,  the  result  will  be  found  to 
be  that  it  only  prohibits  this  impeachment  in  three  cases,  viz.:  (1) 
The  calling  of  witnesses  to  impeach  the  general  character  of  the 
witness;  (2)  the  proof  of  prior  contradictory  statements  by  him; 
and  (3)  a  contradiction  of  the  witness  by  another,  where  the  only  ef- 
fect is  to  impeach,  and  not  to  give  any  material  evidence  upon  any 
issue  in  the  case." 

36  In  State  v.  Benner,  64  Me.  267,  282,  evidence  was  allowed  to  be 
given  by  other  witnesses  to  impeach  the  veracity  of  a  witness,  who 
turned  out  to  be  hostile  to  the  prosecution,  by  whom  he  was  called. 
See,  also,  opinion  of  Thompson,  J.,  in  Stearns  v.  Merchants'  Bank,  53 
Pa.  490,  495.  It  must  clearly  appear  that  the  party  has  been  de- 
ceived or  entrapped  into  calling  the  witness  before  such  evidence  is 
admissible.  Chism  v.  State,  70  Miss.  742,  749,  12  South.  852.  Where 
the  common-law  rule  has  been  changed  by  statute,  so  as  to  permit 
the  showing  of  contradictory  statements  in  case  a  witness  testifies  to 
matter  prejudicial  to  the  case  of  the  party  calling  him,  the  courts 
have  been  strict  in  holding  that  the  testimony  must  be  clearly  preju- 
dicial, and  have  held  that  the  mere  fact  that  a  witness  does  not  tes- 
tify as  expected  will  not  bring  the  case  within  the  statute.  People  v. 
Co'nkling,  111  Cal.  616,  623,  44  Pac.  314. 

37  Williams  v.  Walker,  2  Rich.  Eq.  (S.  C.)  291,  46  Am.  Dec.  53; 
Jackson  v.  Thomason,  1  Best  &  S.  745.  In  analogy  to  the  principle  of 
this  case,  the  Supreme  Court  of  Vermont  has  recently  sought  to  ex- 
tend fhe  exception  to  the  case  of  a  witness  called  by  the  state  in  a 
criminal  case,  on  the  theory  that  "the  state  is  bound  to  call  all  the 
witnesses,"  and  is  not  "at  liberty  to  choose  and  call  whomsoever  it 
will."    State  v.  Slack,  69  Vt.  486,  38  Atl.  311. 


404  EXAMINATION   OF   WITNESSES.  (Ch.  13 


SAME— IMPEACHING    TESTIMONY    OF    ADOPTED    'WIT- 
NESS. 

255.  A  party  wrho,  by  his  examination  of  a  Auritness  called  in 
the  first  instance  by  bis  adversary,  makes  him  his  own. 
witness,    cannot   thereafter   impeach    his   testimony. 

Where  a  witness  called  in  the  first  instance  by  one  party  is 
subsequently  called  for  further  examination  by  the  other,  and 
the  limits  of  cross-examination  are  exceeded,  he  becomes  the 
witness  of  the  cross-examiner.  Having  been  adopted  in  this 
way,  the  same  rules  apply  with  reference  to  impeaching  his 
testimony  as  though  he  had  been  called  in  the  first  instance  by 
such  party. ^^  It  is  equally  true  that  the  party  who  first  called 
the  witness  will  not  be  permitted  to  impeach  his  testimony  be- 
cause he  is  afterwards  called  and  testifies  for  the  other  side.'^ 


DIRECT   EXAMINATION    OF   DEFENDANT'S    W^ITNESSES. 

256.  The  direct  examination  of  the  defendant's  witnesses  is 
conducted  on  precisely  the  same  principle  as  that  of 
the  plaintiff's,  except  that  the  defendant  has  to  an- 
STver  the  testimony  put  in  by  the  plaintiff,  as  ■well  as 
to   establish  the  facts   alleged  in  his  answ^er. 

In  meeting  the  case  made  by  the  evidence  introduced  by  the 
plaintiff  the  defendant  may  proceed  Avith  his  case  in  two  ways : 
(1)  By  discrediting  the  plaintiff's  witnesses,  or  (2)  by  showing 
affirmatively  that  the  facts  are  not  as  testified  to  by  them.  In 
the  discrediting  of  the  plaintiff's  witnesses  the  defendant  mav 
either  impeach  their  character  for  veracity  by  proof  of  general 
bad  reputation  in  that  respect  (a  subject  which  has  already  been 
treated),*"  or  he  may  introduce  evidence  showing  self-contra- 
diction. The  latter  method  is  an  important  feature  in  the  ex- 
amination of  witnesses  for  the  purpose  of  discrediting  testi- 
mony.    Testimony  for  this  purpose  is  only  allowed  when  the 

3  8  Mattice  v.  Allen,  33  Barb.  (N.  T.)  543. 

39  Coulter  V.  Express  Co.,  50  N.  Y.  585.  But  see,  contra,  Morris 
V.  Guffoy,  188  Pa.  534,  41  Atl.  731. 

40  Ante,  p.  204. 


§  257)  CROSS-EXAMINATION.  405 

statement  sought  to  be  contradicted  relates  to  a  material  part 
of  the  case,  otherwise  the  parties  might  be  involved  in  a  long 
series  of  proof  and  counter  proof  respecting  the  contradictory 
statements  of  witnesses,  which  would  tend  only  to  obscure  the 
real  issues  in  the  case,  and  "to  unduly  prolong  the  trial.* ^  The 
test  of  whether  a  witness'  statement  is  material,  so  as  to  be  sub- 
ject to  contradiction  by  the  witnesses  of  the  opposite  party,  is 
to  inquire  whether  it  relates  to  matter  which  such  party  would 
be  permitted  to  give  in  evidence  as  a  part  of  his  case.*^ 

In  the  introduction  of  evidence  for  the  purpose  of  showing 
self-contradiction  there  is  a  rule  that  the  witness  whom  it  is 
sought  to  contradict  should  be  asked  on  his  cross-examination 
whether  or  not  on  such  an  occasion  he  made  the  contradictory 
statement.*^  This  lays  the  foundation  for  the  subsequent  tes- 
timony that  the  witness  did  make  such  statement  in  case  witness 
denies  having  made  it.  It  also  gives  the  witness  a  fair  oppor- 
tunity to  explain  his  position  if  there  is  any  explanation  he  de- 
sires to  make. 


CROSS-EXAMINATION. 

257.    Every  \pitness  whose  direct  examination  is  taken  is  sub- 
ject -to    cross-examination. 

The  right  of  cross-examination  of  a  witness  is  a  very  import- 
ant means  towards  bringing  out  the  truth  of  the  facts  testified 
to.  Every  witness  is  subject  to  cross-examination.**  But  the 
mere  calling  and  swearing  of  a  witness  without  proceeding 

41  Attorney  General  v.  Hitchcock,  1  Exch.  91 ;  Morgan  v.  Insur- 
ance Co.,  6  W.  Va.  496. 

4  2  See  opinion  of  Pollock,  C.  B.,  in  Attorney  General  v.  Hitchcock, 
1  Exch.  91,  98. 

4  3  Gaffney  v.  People,  50  N.  T.  416,  423.  Compare  with  Sloan  v. 
Railroad  Co.,  4.5  N.  Y.  125.  See,  also,  to  same  effect,  Wilkins  v.  Bab- 
bershall,  32  Me.  184. 

4  4  Steph.  Dig.  Ev.  art.  126;  1  Greenl.  Ev.  (1.5th  Ed.)  §  446.  But 
upon  the  preliminary  examination  of  a  witness,  to  determine  whether 
his  evidence  is  competent  to  go  before  the  jury,  there  is  no  right  of 
cross-examination.  The  preliminary  examination  is  theoretically  con- 
ducted by  the  court,  though  counsel  for  one  of  the  parties  may  be  di- 
rected to  conduct  it.    Com.  v.  Morrell,  99  Mass.  542. 


406  EXAMINATION    OF   WITNESSES.  (Ch.  13 

with  his  testimony  does  not  give  the  right  to  the  other  side  to 
cross-examine.*^  Although  the  right  to  cross-examine  is  thus 
considered  an  absolute  right  reserved  to  the  party  against  whom 
the  testimony  of  any  witness  is  offered,  it  does  not  follow  that 
the  exercise  of  the  right  will  always" be  judicious,  or  of  advan- 
tage. It  is  well  to  remember  that  the  average  person  is  only 
rendered  more  clear  in  his  ideas  and  certain  in  his  convic- 
tions by  opposition.  A  hostile  examination,  therefore,  in  the 
majority  of  cases,  only  strengthens  the  testimony  of  the  wit- 
ness. Very  few  witnesses  who  are  put  upon  the  stand  have  any 
intention  to  falsify,  and  in  the  case  of  truthful  witnesses  cross- 
examination  is  a  help  to  clearness  of  testimony.  A  careful  dis- 
crimination in  determining  to  what  extent  and  upon  what  wit- 
nesses it  will  be  best  to  exercise  the  right  is  necessary. 

A  witness  whose  testimony  has  not  strengthened  the  case  of 
the  party  calling  him,  or  who  has  given  an  incomplete  or  un- 
satisfactory statement  of  the  facts,  had  much  better  be  allowed 
to  go  without  cross-examination  than  to  be  placed  in  a  posi- 
tion where  he  can  strengthen  his  testimony.  Cross-examination 
necessarily  opens  the  door  to  re-examination,  and  the  oppor- 

45  Toole  V.  Nichol,  43  Ala.  406;  Austin  v.  State,  14  Ark.  555,  563. 
Stephen,  in  his  Digest  of  the  Law  of  Evidence  (article  126),  says 
that,  whenever  a  witness  has  been  intentionally  sworn,  the  oppo- 
site party  has  a  right  to  cross-examine  him.  No  authorities,  how- 
ever, are  cited  for  this  statement.  It  is  not  probable  that  the  rule 
would  be  enforced  to  this  extent,  for  it  frequently  is  a  practice  to 
swear  all  of  the  witnesses,  which  the  one  side  or  the  other  expects 
to  call,  at  the  same  time,  and  it  is  hardly  to  be  thought  that  the 
court  would  consider  the  administration  of  the  oath  as  sufficient 
ground  for  allowing  the  opposite  party  to  cross-examine.  But  see 
Turnbull  v.  Richardson,  69  Mich.  400,  37  N.  W.  499,  v»here  in  the 
opinion  the  following  statement  will  be  found  (page  416  of  69  Mich., 
and  page  507  of  37  N.  W.) :  "In  England  the  rule  is  that  when  any 
witness  has  been  examined  in  chief,  or  has  been  intentionally  sworn, 
the  opposite  party  has  a  right  to  cross-examine  him,  except  when 
the  witness  was  called  merely  to  produce  a  document  on  a  subpoena 
duces  tecum,  or  in  order  to  be  identified ;  and  this  rule  has  been  sub- 
stantially adopted  in  Massachusetts  and  other  of  the  American 
states.  It  has  been  substantially  acted  upon  in  practice  in  this  state. 
•  *  *  It  is  therefore  no  reason  for  rejecting  or  striking  out  the 
cross-examination  of  a  witness  that  he  has  not  given  any  testimony 
in  chief,  or  that  his  testimony  in  chief  has  been  stricken  out." 


§  258)  CROSS-EXAMINATION.  407 

tunity  to  re-examine,  if  any  weakness  has  been  shown  by  the 
cross-examination,  may  result  in  a  greatly  strengthened  state- 
ment from  the  witness. 

All  testimony  brought  out  on  legitimate  cross-examination  is 
deemed  the  evidence  of  the  party  who  called  the  witness,  and 
by  its  effect  he  is  bound  in  the  same  way  as  he  would  have  been 
had  it  been  brought  out  on  direct  examination.*® 

If  by  accident  or  design  cross-examination  of  a  witness  is 
prevented,  his  direct  examination  is  rendered  incompetent;*'^ 
but  this  rule  is  to  be  enforced  in  a  reasonable  manner.  If,  for 
instance,  the  opposite  party  has  had  the  opportunity  of  cross- 
examining,  but  has  not  availed  himself  of  it,  the  direct  exam- 
ination will  be  received.** 


SAME— SCOPE   OF   CROSS-EXAMINATION. 

258.  The  cross-examination,  according  to  the  English  rule, 
may  extend  to  any  matters  relevant  to  the  case,  -while 
the  American  rule  limits  it  to  the  anatters  covered  by 
the  direct  examination. 

There  is  some  conflict  of  authority  as  to  how  far  cross-exam- 
ination may  extend.  A  witness  may  be  called  to  testify  to  a 
single  branch  of  the  case.  As  to  that  particular  subject  his 
testimony  may  be  favorable  to  the  party  calling  him,  but  he 
may  know  of  other  facts,  which,  if  brought  out,  will  operate  to 

46  Turnbull  v.  Richardson,  69  Mich.  400,  416,  37  N.  W.  499. 

47  See  People  v.  Cole,  43  N.  Y.  508,  512,  where  the  witness,  after 
her  direct  examination,  became  too  sicli  to  be  cross-examined,,  and 
her  testimony  was  held  to  be  incompetent.  Compare  with  this  case 
Sturm  V.  Atlantic  Mut.  Ins.  Co.,  63  N.  Y.  77  (opinion  of  Folger,  J. 
page  87),  where  he  says:  "It  may  be  taken  as  the  rule  that  where  a 
party  is  deprived  of  the  benefit  of  the  cross-examination  of  a  witness 
by  the  act  of  the  opposite  party,  or  by  the  refusal  to  testify,  or  other 
misconduct,  of  the  witness,  or  by  any  means  other  than  the  act  of 
God,  the  act  of  the  party  himself,  or  some  cause  to  which  he  as- 
sented, that  the  testimony  given  on  the  examination  in  chief  may  not 
be  read."  See,  also.  Sperry  v.  Moore's  Estate,  42  Mich.  353,  360,  4  N. 
W.  13 ;   Pringle  v.  Pringle,  59  Pa.  281,  290. 

48  Bradley  v.  Mirick,  91  N.  Y.  293.  Having  once  waived  his  right 
to  cross-examine,  he  cannot  later  exercise  the  right.  People  v.  Hoss- 
ler,  135  Mich.  384,  97  N.  W.  754. 


408  EXAMINATION    OF   WITNESSES.  (Ch.  13 

the  disadvantage  of  such  party.  The  questions  then  arise,  will 
the  opposing-  counsel  be  permitted  on  cross-examination  to 
bring  out  such  unfavorable  matter,  and  will  the  testimony  be 
treated  as  the  testimony  of  the  other  party  ?  It  is  obvious  that 
if  this  course  may  be  pursued  it  will  be  of  tremendous  advan- 
tage to  the  cross-examiner,  for  he  may  pursue  all  the  methods 
allowed  on  cross-examination,  and  will  be  subject  to  none  of 
the  limitations  imposed  upon  an  examination  of  his  own  wit- 
ness. The  English  courts  have  said  that  such  a  course  may  be 
adopted,  and  that  cross-examination  of  a  witness  may  extend 
to  all  matters  material  to  the  case.*^  The  doctrine  generally 
adopted  by  the  American  courts  is  contra,  and  confines  the 
cross-examination  to  such  matters  as  have  been  gone  into  on 
the  examination  in  chief.-'"'''  Under  this  doctrine,  if  the  cross- 
examination  extends  beyond  the  grounds  covered  in  the  direct 
examination,  the  witness  becomes  the  witness  of  the  party 
cross-examining.  The  testimony  brought  out  binds  him  as 
though  he  had  called  the  witness  himself,  and  in  bringing  it 
out  he  is  confined  to  the  methods  of  the  direct  examination.^^ 

4»  Steph.  Dig.  Ev.  art.  127. 

50  People  V.  Court  of  Oyer  &  Terminer  of  New  York  Co.,  83  N. 
Y.  436,  459;  State  v.  Smith.  49  Conn.  376.  380;  Donnelly  v.  State, 
26  N.  J.  Law,  463.  494 ;  Fulton  v.  Central  Bank,  92  Pa.  .112 ;  Bell  v. 
Chambers,  38  Ala.  660,  664;  City  of  Aurora  v.  Cobb,  21  Incl.  492, 
511 ;  Hurlbut  v.  Meeker,  104  111.  541 ;  Krager  v.  Pierce,  73  Iowa,  359, 
35  N.  W.  477 ;  Buckley  v.  Buckley,  14  Nev.  262 ;  Lawder  v.  Hinder- 
son,  36  Kan.  754,  14  Pac.  164;  People  v.  Miller,  33  Cal.  99;  Hough- 
ton V.  Jones,  1  Wall.  (U.  S.)  702,  17  L.  Ed.  503.  See  contra,  and  in 
accord  with  English  doctrine,  Blackington  v.  .Johnson,  126  Mass.  21 ; 
Kibler  v.  Mcllwaiu.  16  S.  C.  550,  556;  People  v.  Barker,  60  Mich. 
277,  302,  27  N.  W.  539,  1  Am.  St.  Rep.  501 ;  Mask  v.  State,  32  Miss. 
405,  427. 

51  Finch,  J.,  says,  in  People  v.  Court  of  Oyer  &  Terminer  of  New 
York  Co.  (cited  in  preceding  note),  as  to  the  right  to  put  leading 
questions  to  a  witness  upon  cross-examination  as  to  matter  not  gene 
into  on  the  examination  in  chief:  "As  to  the  new  matter,  the  wit- 
ness becomes  his  own,  and.  in  substance,  and  effect,  the  cross-exam- 
ination ceases.  That  is  properly  such  only  while  it  is  directed  to 
the  evidence  given  in  behalf  of  the  adversary.  When  it  passes  be- 
.vond  that,  it  becomes  the  direct  and  affirmative  evidence  of  the 
party,  and  should  be  subjected  to  the  appropriate  restraints.  There 
is  no  reason  in  the  nature  of  the  case  why  a  direct  examination 
should  be  guarded  against  the  evil  and  danger  resulting  from  lead- 


§  259)  CROSS-EXAMINATION.  409 

The  manner  and  extent  of  cross-examination  are  largely 
within  the  discretion  of  the  presiding  judge." 


SAME-SCOPE  UNLIMITED  IN  RESPECT  TO  CREDIBILITY. 

259.    The  scope  of  the  cross-examination  is  not  limited  tvhen 
directed  to  the  credit  of  the  witness. 

The  purpose  of  the  cross-examination  is  to  test  the  truth- 
fuhiess,  candor,  intelligence,  memory,  bias,  or  interest  of  the 
witness,  and  any  question  to  that  end  within  reason  is  usually 
allowed.  ^^ 

There  is  no  distinction  between  the  American  and  English 
cases  in  respect  to  this  rule.  The  fact  that  a  question  may  tend 
to  disgrace  the  witness  is  no  objection  to  it,  provided  it  is  fair- 
ly directed  towards  testing  the  veracity  of  the  witness.^*  A 
witness  may  be  asked  whether  he  has  been  in  prison  for  crime  ;^^ 

ing  questions  which  do  not  apply  to  an  effort  upon  cross-examination 
to  introduce  a  new  and  affirmative  defense.  See,  also.  Sullivan  v. 
Railroad  Co.,  175  Pa.  3G1,  365,  34  Atl.  798 ;  Prather  v.  Railroad  Co., 
221  III.  190,  77  N.  E.  430;  Quigley  v.  Thompson,  211  Pa.  107,  60 
Atl.  506. 

52  Taylor  v.  Schofield,  191  Mass.  1,  77  N.  E.  652 ;  Thompson  v. 
U.  S..  144  Fed.  14,  75  C.  C.  A.  172. 

53  Briggs  V.  People,  219  111.  330,  76  N.  E.  499. 

54  Real  V.  People,  42  N.  T.  270,  280;  Muller  v.  St.  Louis  Hospital 
Ass'n,  5  Mo.  App.  390,  401;  City  of  South  Bend  v.  Hardy,  98  Ind. 
577,  49  Am.  Rep.  792;  Wroe  v.  State,  20  Ohio  St.  460,  470.  The 
fact  that  a  man  deserted  from  the  army  has  been  held  to  have  no 
bearing  on  his  credibility  (Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Johnson.  83 
Tex.  028,  19  S.  W.  151) ;  nor  the  fact  that  he  has  no  religious  belief 
(People  V.  Copsey.  71  Cal.  548,  12  Pac.  721);  nor  the  fact  that  he 
Visited  saloons,  drank  and  played  cards  (Ilayward  v.  People,  96  111. 
492,  502).  It  is  to  be  observed  that,  in  case  of  questions  put  tending 
to  bring  out  disgraceful  acts  on  the  part  of  the  witness,  the  witness 
may,  if  the  answer  will  tend  to  criminate  him.  assert  his  privilege  of 
refusing  to  answer;  but  subject  to  this  qualification  the  field  is  un- 
limited. 

55  Com.  V.  Bonner,  97  Mass.  587;  Spiegel  v.  Hays.  118  N.  Y.  660. 
22  N.  E,  1105.  It  is  held  in  Michigan  that  a  witness  may  be  asked 
if  he  has  been  indicted  or  arrested  for  crime  (Wroe  v.  State,  20  Ohio 
St.  460,  470;  People  v.  Foote.  03  Mich.  38,  52  N.  W.  1036);  but  the 
New  York  doctrine,  to  the  effect  that  mere  indictment  or  arrest  for 


410  EXAMINATION    OF   WITNESSES.  (Ch.  13 

in  case  of  a  witness  who  was  a  Catholic  priest,  whether  he 
was  not  married  after  his  ordination;  ^"^  whether  the  witness 
has  been  in  a  conspiracy  to  defraud  an  insurance  company ;  **' 
and  other  questions  of  similar  character.  As  preliminary  to  the 
cross-examination  of  a  witness  as  to  the  facts  in  the  case,  it  is 
common  practice  to  make  inquiry  into  his  relations  with  the 
party  on  whose  behalf  he  was  called, — business,  social,  and 
family;  also  to  inquire  as  to  his  feelings  towards  the  party 
against  whom  his  testimony  has  been  given.  This  is  permis- 
sible in  order  to  place  his  testimony  in  a  proper  light  with  ref- 
erence to  bias  in  favor  of  the  one  party  or  prejudice  against 
the  other.  ^8 


SAME— LEADING  QUESTIONS   ON  CROSS-EXAMINATION. 

260.    In  the  cross-examination  of  a  witness  leading  questions 
are   permissible. 

It  is  one  of  the  advantages  in  cross-examination  that  the  facts 
may  be  put,  in  questions  asked  the  witness,  in  the  light  in  which 
the  party  cross-examining  wishes  them  to  appear,  and  the  wit- 
ness' "Yes"  or  "No"  requested  as  to  their  correctness.  When 
the  difficulty  of  getting  a  witness  to  give  the  facts  properly 
and  in  such  manner  as  will  be  most  impressive  is  considered, 
this  advantage  will  be  appreciated.  By  the  leading  question  a 
witness  may  often  be  surprised  into  an  admission  of  the  truth 
of  facts  which  he  has  denied  on  direct  examination.  Leading 
questions  are  permitted  upon  all  matters  in  reference  to  which 
the  witness  may  be  cross-examined.     In  those  jurisdictions 

crime  without  subsequent  conviction  cannot  be  sliown,  seems  the  bet- 
ter, People  V.  Crapo,  76  N.  Y.  288,  32  Am.  Rep.  302 ;  People  v.  Cas- 
come,  185  N.  T.  317,  78  N.  E.  287.  See  People  v.  Eldridge,  147  Cal. 
782,  82  Pac.  442 ;    Code  Civ.  Proc.  Cal.  §  2051. 

56  Muller  V.  St.  Louis  Hospital  Ass'n,  5  Mo.  App.  390,  401. 

57  City  of  South  Bend  v.  Hardy,  98  Ind.  577,  49  Am.  Rep.  792. 

68  Schultz  V.  Railroad  Co.,  89  N.  Y.  242;  Gutterson  v.  Morse,  58  N. 
H.  165 ;  State  v.  Montgomery,  28  Mo.  594.  In  State  v.  Montgomery, 
it  was  held  that  cross-examination  as  to  witness'  feelings  towards  the 
husband  of  the  party  cross-examining  would  not  be  allowed.  The 
danger  in  this  is  set  forth  in  the  opinion  in  State  v.  Hill,  52  W.  Va. 
296,  43  S.  E.  160. 


§  261)  CROSS-EXAMINATION.  411 

where  cross-examination  is  allowed  as  to  the  whole  case,  lead- 
ing questions  are  permitted  even  though  they  relate  to  entirely 
new  matter.  °' 

SAME— SELF-CONTRADICTION. 

261.  A  witness  may  be  asked  on  cross-examination  whether 
he  has  not  made  previous  statements  contradictory  to 
his  present  testimony. 

There  are  two  purposes  for  which  self-contradiction  may  be 
attempted  to  be  shown  upon  the  cross-examination, — one  for 
the  immediate  effect  it  may  have  in  reference  to  the  credibility 
of  the  witness,  as  when  the  witness  either  admits  the  making  of 
previous  inconsistent  statements  or  becomes  so  confused  and 
uncertain  as  to  create  a  bad  impression ;  the  other  for  the  pur- 
pose of  laying  the  foundation  for  the  introduction  of  direct  tes- 
timony showing  that  the  witness  has  made  such  contradictory 
statements  on  prior  occasions.*"*  The  denial  of  the  witness  is, 
of  course,  a  condition  precedent  to  proceeding  with  such  tes- 
timony." It  is  also  held  that  no  direct  testimony  can  be  intro- 
duced to  show  a  self-contradiction  on  the  part  of  the^  witness 
unless  the  statement  relates  to  a  material  fact.^^  This  is  not 
saying  that  in  the  cross-examination  itself  a  witness  may  not 
be  interrogated  as  to  previous  statements  upon  collateral  facts, 
but  only  that  Uis  denial  will  furnish  no  foundation  for  further 
testimony  on  the  point,  unless  it  relates  to  material  facts.    It 

B9  Moody  V.  Rowell,  17  Pick.  (Mass.)  490,  28  Am.  Dec.  317. 

60  Welch  V.  Abbot,  72  Wis.  512,  515,  40  N.  W.  223. 

61  People  V.  Walker,  140  Cal.  153,  73  Pac.  831.  But  it  was  held 
in  Peck  v.  Ritchey.  66  Mo.  114,  119,  that  when  the  witness  testified 
that  he  did  not  know  whether  he  did  or  did  not  make  the  statement, 
it  could  be  proved  that  he  had  made  it.  To  the  same  effect,  see  Cole 
V.  State,  6  Baxt.  (Tenn.)  239. 

62  Carpenter  v.  Ward,  30  N.  Y.  243;  Alexander  v.  Kaiser,  149  Mass. 
321,  21  N.  E.  376 ;  Smith  v.  Town  of  Royalton,  53  Vt.  604 ;  State  v. 
Goodwin  32  W.  Va.  177,  9  S.  E.  85 ;  State  v.  Grouse,  86  N.  C.  617  ; 
Shields  v.  Cunningham,  1  Blackf.  (lud.)  86;  Com.  v.  Hourigau.  89 
Ky.  305.  311,  12  S.  W.  550 ;  Dillard  v.  United  States,  141  Fed.  303,  72 
C.  C.  A.  451. 


-11-2  EXAMINATION    OF   AVITNES8ES.  (Ch.  13 

is  held  that  the  veracity  and  bias  of  a  witness  are  relevant  to 
the  issue. ^^ 

Another  condition  to  the  introduction  of  further  testimony 
showing  contradictory  statements  is  that  in  the  cross-examina- 
tion the  circumstances  of  time  and  place  of  the  making  of  such 
alleged  contradictory  statements  must  be  put  before  the  witness 
with  sufficient  clearness  to  identify  the  occasions.^*  The  ques- 
tion of  how  far  it  is  necessary  to  place  the  matter  before  the 
mind  of  the  witness  is  one  largely  of  discretion.  The  object 
to  be  attained  is  that  the  witness  may  have  an  "opportunity  of 
making  an  explanation,  in  order  that  it  may  be  seen  whether 
there  is  a  serious  conflict  or  only  a  misunderstanding  or  misap- 
prehension." With  this  in  view,  the  court  may  vary  the  strict 
course  of  examination.*'^  Where  the  statement  about  which 
he  is  asked  is  in  writing,  it  is  necessary  that  his  attention  be 
called  to  the  writing,  and,  if  he  denies  that  he  made  such  state- 
ment, the  writing  must  be  proved  in  the  ordinary  way.  If  he 
admits  he  made  it,  it  may,  of  course,  be  read  in  evidence  in 
contradiction  of  his  previous  testimony.^®     The  fact  that  the 

63  Day  V.  Stickney,  14  Allen  (Mass.)  255 ;  Combs  v.  Winchester,  39 
N.  H.  13,  19,  75  Am.  Dec.  203. 

6  4  Mattox  V.  U.  S.,  156  U.  S.  237,  24.5,  15  Sup.  Ct.  337,  39  L.  Ed. 
409 ;  Hart  v.  Hudson  River  Bridge  Co.,  84  N.  Y.  56 ;  State  v.  Glynn, 
51  Vt.  577;  Unis  v.  Charlton's  Adm'r,  12  Grat.  (Va.)  484,  494;  Mat- 
this  V.  State,  33  Ga.  24 ;  Lawler  v.  McPheeters,  73  Ind.  577 ;  Camp- 
bell V.  Campbell,  138  HI.  612,  615,  28  N.  E.  1080;  State  v.  Grant, 
79  Mo.  113,  49  Am.  Rep.  218;  Watson  v.  Railway  Co.,  42  Minn.  46, 
43  N.  W.  904 ;  People  v.  Devine,  44  Cal.  452 ;  McCamant  v.  Roberts, 
SO  Tex.  310,  15  S.  W.  580,  1054. 

6  5  Church,  C.  J.,  in  Sloan  v.  Railroad  Co.,  45  N.  Y.  125,  127.  In 
People  V.  Weldon,  111  N.  Y.  .509,  19  N.  E.  270,  M.,  a  witness  for  the 
prosecution,  was  allowed  to  testify  to  a  conversation  with  S.,  one  of 
the  defendant's  witnesses.  S.  had  testified  that  he  had  had  no  con- 
versation with  M.,  but  he  was  not  questioned  as  to  the  time,  place, 
and  subject  of  the  conversation  afterwards  testified  to  by  M.  After 
M.  had  finished  his  testimony,  the  defendant  put  S.  on  the  stand 
again,  and  asked  him  particularly  as  to  the  alleged  conversation. 
The  court  held  that  by  so  doing  the  defendant  had  waived  any  objec- 
tion to  the  testimony  of  M.,  and  that,  as  all  the  testimony  of  both 
witnesses  as  to  the  alleged  conversation  was  before  the  court,  al- 
though not  brought  out  in  the  ordinary  way,  there  was  no  ground  of 
exception. 

6  6  Gaffney  v.  People,  50  N.  Y.  416,  423. 


§  263)  RE-EXAMINATION.  413 

previous  statement  is  in  writing  does  not  prevent  cross-examina- 
tion as  to  what  the  writing  stated,  nor  necessitate  the  production 
of  the  writing.  The  purpose  is  not  to  prove  the  contents  of  the 
writing,  but  to  prove  that  the  witness  made  a  statement  incon- 
sistent with  his  present  testimony.  There  is  no  difference  in 
the  manner  of  cross-examination,  whether  it  relate  to  previous 
oral  or  written  statements. "'^ 


RE-EXAMINATION. 

262.  Further  examination  by  a  party  of  his  own  witnesses, 
after  cross-examination,  is  usually  found  necessary, 
and  is  know^n  as  re-examination  or  redirect  examina- 
tion. 

With  the  direct  examination  a  party  puts  before  the  court 
substantially  all  the  facts  which  from  his  point  of  view  are  ma- 
terial to  support  his  case.  After  the  witness  has  been  handled 
by  his  adversary  many  facts  may  have  been  brought  out  on 
cross-examination  which  require  further  explanation  or  further 
testimony  to  make  the  witness'  testimony  as  a  whole  consistent 
and  clear.  On  cross-examination  only  those  facts  may  have 
been  brought  out  which  serve  to  weaken  the  case  of  the  party 
producing  the  witness  and  to  favor  the  opposite  side. 

It  may  be  that  a  witness  has  been  asked  to  produce  certain 
correspondence,  and  only  a  part  of  the  correspondence,  such 
as  a  single  letter,  has  been  used.  On  re-examination  it  then  be- 
comes important  that  the  whole  correspondence  should  be  put 
in,  or  it  may  have  appeared  that  the  witness  had  a  conversation, 
but  the  substance  of  the  conversation  has  not  been  asked.  This 
or  some  other  condition  equally  unfavorable  in  which  the  testi- 
mony is  left  at  the  close  of  the  cross-examination  usually  ren- 
ders some  further  examination  of  the  witness  desirable. 

SAME— PURPOSE    OF   RE-EXAMINATION. 

263.  Tlie  sole  object  of  the  re-examination  should  be  to  re- 
habilitate and  strengthen  the  witness  and  not  to  add 
new^  testimony. 

«7  Town  of  Randolph  v.  Town  of  Woodstock,  35  Vt.  291,  295. 


414  EXAMINATION   OF   WITNESSES.  (Ch.  13 

While  the  object  of  the  re-examination  is  to  reinforce  the 
testimony  already  given  by  the  witness  upon  his  direct  exam- 
ination and  to  remove  any  obscurity  or  uncertainty  left  by  the 
cross-examination  by  proper  explanation,  there  is  no  strict  rule 
which  prevents  a  party  from  examining  the  witness  as  to  new 
matters  which  have  been  overlooked  or  were  not  known  about 
on  the  direct  examination.  It  should  also  be  noted  that  the 
purpose  of  re-examination  is  not  to  go  over  the  facts  brought 
out  on  direct  examination  in  order  to  emphasize  or  impress 
those  facts  on  the  minds  of  the  jury.  The  question  as  to  what 
limits  shall  be  placed  upon  re-examination  is  largely  one  of 
discretion."^ 

68  Clark  V.  Vorce,  15  Wend.  (N.  Y.)  193,  30  Am.  Dec.  53.  Savage, 
C.  J.,  delivering  the  opinion  of  the  court,  says:  "It  Is  the  duty  of 
counsel  to  examine  a  witness  to  his  vphole  case  when  he  calls  him ; 
but  if  counsel  calls  a  witness  who  knows  facts  to  sustain  several 
points  in  his  client's  case,  inadvertently  omits  to  examine  the  witness 
to  one  point,  until  after  he  has  been  cross-examined,  there  is  surely 
no  reason  in  the  policy  of  the  law  against  a  further  examination.  It 
may,  perhaps,  be  inconvenient  to  the  judge  and  opposing  counsel,  to 
enter  into  the  further  examination,  but  that  is  not  a  sufficient  reason 
why  the  party  calling  the  witness  should  be  deprived  of  material 
testimony.  It  is  not  consistent  with  justice  that  a  party  should  lose 
his  cause  because  the  testimony  is  not  introduced  with  strict  tech- 
nical precision,  or  that  it  may  possibly  give  additional  trouble  in 
taking  notes  of  the  testimony.  It  seems  to  me  that  too  much  perti- 
nacity in  a  strict  adherence  to  arbitrary  rules  is  sometimes  grasping 
the  shadow,  and  letting  go  the  substance.  Justice  Is  always  best  ad- 
ministered by  a  liberal  indulgence  to  parties  in  the  production  and 
examination  of  their  witnesses." 


§  264)  WRITINGS.  415 


CHAPTER  XIV. 

WRITINGS. 

264.  Double  Character  of  Writings. 

265.  Physical  Objects  as  Evidence. 

266.  Illustrative  Evidence. 

267.  Pictorial  Evidence  as  Original  Evidence. 

268.  Authentication. 

269.  Materiality. 

270.  Accessibility. 

271.  Writings   in   Narrow   Sense. 

272.  Best  Evidence  Rule. 

273.  Original  Documents  Required. 

274.  When  Secondary  Evidence  Admissible. 
275*.  Kinds  of  Secondary  Evidence. 

276.  Production  of  Documents. 

'>77-279.  Authentication  of  Documents— Attested  Documents. 

280-281.  When  Proof  by  Attesting  Witnesses  Excused. 

282-283.  Kind  of  Evidence  Necessary  in  Absence  of  Attesting 
Witnesses. 

284.  Nature  of  Proof  Required  from  Attesting  Witnesses. 

285.  Unattested  Documents. 

286.  Exceptions  to  Rule  Requiring  Proof  of  Execution. 
287-288.  Proof  of  Handwriting. 

289.  By   One  who  has  Seen  the  Person  W^rite. 

29o!  By  One  Familiar  with  the  Writing. 

291.  By  the  Opinions  of  Experts. 

292.  By  Comparison  of  Hands  by  Jury. 

293.  Evidence  Affecting  the  Contents  of  Documents. 

294.  Reason  for  Rule. 

295.  Validity  of  Instrument  Questioned. 

296.  Collateral  Oral  Agreements. 

297.  Writing  a  Mere  Memorandum. 

298.  Oral   E^'idence  of  Custom. 

299.  Writing  Brought  in  Issue  Collaterally. 

300.  Evidence  as  to  Alterations. 

301.  Interpretation  of  Documents. 

302.  Receipts. 

DOUBLE    CHARACTER    OF   WRITINGS. 

264.  A  writing  may  be  treated  as  a  physical  object  or  as  an 
operative  thing,  which,  through  its  contents,  speaks 
or  acts,  and  is,  therefore,  evidentiary  of  something 
else. 


416  WRITINGS.  (Ch.  14 

A  writing  is  ordinarily  thought  of  as  the  physical  expression 
of  an  idea,  and  not  as  a  combination  of  paper  and  ink.  Yet  a 
writing  may  be  looked  at  simply  in  the  light  of  a  physical  ob- 
ject— an  article  which  may  be  handled.  As  such  it  has  no  evi- 
dentiary force  other  than  that  possessed  by  a  piece  of  paper. 
If  its  existence  is  a  material  question  in  the  case,  its  production 
would  be  evidence  (or  rather  proof)  of  that  fact,  just  as  the 
production  of  any  article — for  instance,  a  weapon  or  piece  of 
clothing — the  existence  or  condition  of  which  was  in  question, 
would  be  satisfactory  proof. 

Writings  may  be  dealt  with  in  a  broad  sense  as  including  all 
objects  which  by  presentation  to  the  physical  senses  of  the  jury 
may  be  said  to  "speak"  concerning  some  disputed  question  of 
fact.  In  this  sense  a  piece  of  clothing,  an  injured  limb,  a  weap- 
on, or  other  object  used  to  enlighten  the  jury,  may  be  classed 
as  a  writing.  Articles  exhibited  to  the  senses  of  the  jury  are 
sometimes  spoken  of  as  "real"  or  "demonstrative"  evidence. 
A  few  words  as  to  their  use  may  properly  have  place  in  this 
chapter. 

PHYSICAL  OBJECTS    AS    EVIDENCE. 

265.  Physical  objects,  as  to  the  condition  or  existence  of 
Avhich  there  are  disputed  questions,  or  T^liich  may  en- 
able the  jury  to  reach  more  accurate  conclusions  re- 
specting issues  in  the  case,  may,  in  the  reasonable  ex- 
ercise of  discretion  by  the  court,  be  received  in  evi- 
dence. 

The  extent  to  which  the  court  may  go  in  allowing  the  use 
of  physical  objects  is  not  defined  by  any  absolute  rule  or  rules. 
The  exercise  of  a  reasonable  discretion  by  the  judge  in  this  re- 
spect has  generally  been  upheld,  and  there  are  few  cases  in 
which  the  misuse  of  such  discretion  has  resulted  in  a  reversal 
on  appeal.^ 

1  .Jefferson  Ice  Co.  v.  Zvvicokoski,  78  111.  App.  646;  Chicago  &  A. 
II.  Co.  V.  Clausen,  173  111.  100.  ."iO  N.  E.  G.SO.  The  use  of  a  baby 
six  weeks  old  upon  the  question  of  paternity  was  held  to  have  been 
erroneous.  Copoland  v.  State  (Tex.  Cr.  App.)  40  S.  W.  589.  Another 
instance  where  it  was  held  the  court  had  exceeded  its  discretion  in 


§  265)  PHYSICAL    OBJECTS   AS   EVIDENCE.  417 

There  are,  however,  several  features  of  the  use  of  this  class 
of  evidence  which  should  be  noted.  First,  it  is  to  be  observed 
that  there  are  two  points  of  view  from  which  objection  to  the 
evidence  may  be  considered :  The  point  of  view  of  a  party  of- 
fering the  evidence,  and  the  point  of  view  of  a  party  seeking  to 
compel  its  production.   . 

The  cases  quite  generally  hold  to  the  doctrine  of  a  wide  lati- 
tude in  the  receipt  of  evidence  of  this  character,  when  offered 
voluntarily  by  either  party.  As  serving  to  truthfully  place 
before  the  jury  the  facts  material  to  the  case,  it  must  be  recog- 
nized that  physical  objects  often  play  a  very  important  part. 
Where  they  are  offered,  therefore,  it  seems  quite  proper  that, 
unless  there  is  some  consideration  of  fairness  or  decency  to  pre- 
vent, they  should  be  received.^ 

An  entirely  different  phase  of  the  subject  is  presented  where 
production  of  this  class  of  evidence  is  requested,  and  the  court 
is  asked  to  compel  an  unwilling  party  to  comply  with  the  re- 
quest. Here  the  courts  have  quite  generally  held  to  a  narrow 
application  of  their  power  in  this  respect.  The  question  has 
arisen  most  often  in  cases  where  physical  examination  has  been 
sought,  and  where  the  party  has  been  unwilling  to  exhibit  to 
the  jury  a  wound  or  injury.  In  these  cases  the  courts  will  rare- 
ly compel  the  exhibition  of  the  injured  member.^ 

An  element  in  the  use  of  this  kind  of  evidence,  which  has 
often  influenced  the  court  in  allowing  its  admission,  is  the  ef- 

allowing  the  introduction  of  this  sort  of  evidence  is  found  in  Gar%'ik 
V.  Railway  Co.,  124  Iowa,  691,  100  N.  W.  498. 

2  City  of  Topeka  v.  Bradshaw,  5  Kan.  App.  879,  48  Pac.  751;  Selt- 
zer V.  Saxton,  71  111.  App.  229;  McMahon  v.  City  of  Dubuque,  107 
Iowa,  62,  77  N.  W.  517,  70  Am.  St.  Rep.  143;  Boucher  v.  Robeson 
Mills,  182  Mass.  500,  65  N.  E.  819.  A  watch  which  had  stopped, 
taken  from  the  pocket  of  deceased  after  the  accident,  is  a  striking 
instance  of  the  analogy  of  this  kind  of  evidence  to  writings.  Upon 
the  issue  of  darkness,  and  whether  the  train  was  running  on  sched- 
ule time,  the  watch  was  held  to  be  competent.  Stone  v.  Railroad.  72 
N.  H.  206,  55  Atl.  359. 

3  Mills  V.  Railway  Co.,  2  Hardesty  (Del.)  31;  Grand  Lodge,  Broth- 
erhood of  Railroad  Trainmen,  v.  Randolph.  186  111.  89,  57  N.  E.  SS2 : 
McKnight  v.  Railway  Co.,  135  Mich.  307,  97  N.  W.  772.  But  in  Chi- 
cago, R.  I.  &  T.  R.  Co.  V.  Langston,  19  Tex.  Civ.  App.  568,  48  S. 
W.  610.  the  court  held  that,  where  the  plaintiff  had  exhibited  her 
wounds  to  the  juiy.  she  could  be  compelled  to  allow  examination 

M'KELV.EV.(2d  ED,)— 27 


418  WRITINGS.  (Ch.  14 

feet  that  it  is  likely  to  have  in  exciting  or.  prejudicing  the  jury, 
by  reason  of  arousing  their  sympathies  or  passions.  This  ele- 
ment alone  has  frequently  been  responsible  for  the  refusal  to 
receive  evidence  of  this  character. 

A  case  of  this  sort  arose  in  an  action  for  personal  injuries, 
where  the  attorney  sought  to  introduce  the  amputated  foot  of 
the  injured  child  for  the  alleged  purpose  of  showing  the  size 
of  the  child  at  the  time  of  the  injury.  The  child  itself  was  pres- 
ent at  the  trial,  and  the  court  very  properly  declined  to  receive 
the  foot  in  evidence.* 


ILLUSTRATIVE  EVIDENCE. 

266.   Maps,  diag^rams,  and  pliotograplis  are  admissible  to  ex- 
plain or  illustrate  the  testimony  of  a  ivitness. 

Writings,  in  the  broad  sense  above  mentioned,  include  also 
a  second  class  of  evidence,  which  in  a  sense  may  be  said  to 
be  secondary  to  the  demonstrative  evidence  just  referred  to ; 
that  is,  treating  the  physical  objects  which  may  be  brought 
into  court  as  evidence  as  primary  evidence,  it  is  permitted, 

of  the  wounds  by  experts  of  the  defendant's  selection.  This  seems 
a  reasonable  conclusion,  and  is  really  somewhat  in  the  nature  of  a 
cross-examination  of  the  witness. 

4  Rost  V.  Railroad  Co.,  10  App.  Div.  477,  41  N.  Y.  Supp.  10G9. 
"Where  the  purpose  for  which  the  evidence  was  offered  seemed  legiti- 
mate— as,  for  example,  the  showing  to  the  jury  of  the  real  character 
of  an  injury— the  exhibition  of  an  empty  eye  socket,  even  though 
it  might  tend  to  excite  pity  and  sympathy,  was  held  proper.  Or- 
scheln  v.  Scott,  90  Mo.  App.  352.  See,  also.  Perry  v.  Railway  Co.. 
68  App.  Div.  351.  74  N.  Y.  Supp.  1;  West  Chicago  St.  Ey.  Co.  v. 
Grenell,  90  111.  App.  30.  In  Anderson  v.  Seropian,  147  Cal.  201,  81 
Pac.  521,  the  presei'ved  hand,  which  had  been  taken  off  by  a  roller 
on  a  printing  press,  was  admitted  for  the  purpose  of  showing,  by 
a  streak  of  ink  on  the  hand,  the  portion  of  the  machine  by  which 
the  injury  had  been  caused;  and  in  another  case  ampxitated  toes 
were  held  competent  evidence  upon  the  subject  of  the  nature  of  the 
accident,  though  the  court  laid  down  the  rule  that  the  offer  of  such 
evidence  must  be  for  the  purpose  of  proving  some  disputed  fact 
material  to  the  issue.  Nebonne  v.  Railroad  Co.,  C8  N.  H.  296,  44 
Atl.  521.  In  one  case,  upon  the  issue  of  paternity,  a  baby  six  weeks 
old  was  introduced,  and  on  appeal  the  court  held  this  to  have  been 
error.     Copeland  v.  State  (Tex.  Cr.  App.)  40  S.  W.  589. 


§  2f)6)  ILLUSTKATIVE    EVIDENCE.  419 

where  it  is  impossible  to  present  to  the  jury  such  primary 
evidence,  to  put  before  them  maps,  diagrams,  and  photographs, 
which  will  present  to  them  the  appearance  and  condition  of 
physical  things  which  may  be  material  to  the  issues. 

There  are  two  ways  in  which  this  kind  of  evidence  has  been 
treated  by  the  courts :  The  one,  as  explanatory  or  illustrative 
of  the  verbal  testimony  of  a  witness ;  and  the  other,  as  in  it- 
self constituting  original  evidence,  in  addition  to  and  beyond 
such  verbal  testimony. 

It  is  usually  in  the  performance  of  the  first  function  men- 
tioned that  we  find  maps  and  diagrams  introduced,  while  in 
the  case  of  photographs,  if  their  explanatory  nature  is  made 
use  of,  it  is  generally  supplemented  by  the  use  of  the  photo- 
graph for  the  second  purpose  above  mentioned. 

The  map,  diagram,  or  photograph  may  have  been  made  by  the 
witness  whose  testimony  it  explains,  or  it  may  have  been  made 
by  some  other  person.^  In  either  case,  so  far  as  its  illustrative 
or  explanatory  nature  is  concerned,  the  only  essential  is  that 
it  be  offered  in  connection  with  the  witness'  verbal  testimony, 
and  may  thus  stand  before  the  jury  as  a  part  of  that  testimony. 
The  function  it  serves  in  this  view  is  simply  to  present  a  con- 
dition or  a  group  of  objects,  by  the  use  of  pictorial  language, 
more  clearly  to  the  jury  than  could  be  done  by  the  words  of 
the  witness.  Take,  for  example,  a  case  where  a  surgeon  is 
attempting  to  describe  to  the  jury  the  condition  of  a  fracture 
of  a  bone  in  the  human  body :  he  can,  by  the  use  of  a  drawing 
or  an  X-ray  photograph  of  the  fracture  in  question,  illustrate 
to  the  jury  the  exact  location  and  nature  of  the  injury  more 
plainly  and  satisfactorily  than  in  any  other  way.  Such  evi- 
dence is  very  generally  admitted.® 


5  Koon  V.  Railway  Co.,  69  S.  C.  101,  48  S.  E.  86;  Lake  Erie  &  W. 
Ry.  Co.  V.  Wilson,  87  111.  App.  360. 

6  Bruce  v,  Beall,  99  Tenn.  303,  41  S.  W.  445.  In  this  case  an  X-ray 
photograph  was  admitted.  Other  instances  of  illustrative  evidence 
of  this  character  are  found  where  maps  have  been  introduced,  Jor- 
dan v.  Duke,  6  Ariz.  55,  53  Pac.  197 ;  diagram  of  a  track  and  car, 
with  indication  of  injured  party's  position,  Clegg  v.  Railway  Co., 
159  N.  Y.  550,  54  N.  E.  1089 ;  Southern  Pac.  Co.  v.  Hall,  100  Fed.  700, 
41  C.  C.  A.  50 ;  photograph  of  a  wreck,  Denver  &  R.  G.  Ry.  Co.  v.  Rol- 
ler, 100  Fed.  738,  41  C.  C.  A,  22,  49  L.  R.  A.  77 ;  enlarged  photograph 


420  WRITINGS.  (Ch.  14 

The  use  of  diagrams,  pictures,  or  photographs  in  this  ex- 
planatory way  is  attended  with  little  difficulty  so  far  as  the 
principles  of  evidence  are  concerned  They  are  brought  for- 
ward either  by  the  witness  or  in  connection  with  his  testi- 
mony, and,  if  it  sufficiently  appears  to  the  court  that  they 
would  be  helpful,  they  are,  as  shown  by  the  cases  cited,  quite 
generally  admitted.  The  sole  principle  involved  is  that  of 
helpfulness  in  making  the  testimony  clear.  Where  it  does 
not  appear  that  they  would  be  of  service  in  this  way,  and 
that  the  verbal  testimony  is  itself  sufficiently  clear,  they  may 
be  excluded.^ 

PICTORIAL  EVIDENCE  AS  ORIGINAL  EVIDENCE. 

267.  Photographs  and  other  forms  of  pictorial  representation 
are,  Avhen  properly  authenticated,  admissible  as  evi- 
dence of  the   things  represented. 

Evidence  of  this  kind  in  the  second  aspect  above  mentioned, 
namely,  as  original  evidence  justifying  inferences  beyond  the 
verbal  testimony  given  as  to  the  facts  represented,  is  in  a 
sense  a  substitute  for  the  view  of  the  place  or  objects  in  con- 
troversy, which  the  jury  is  in  many  cases  permitted  to  have. 

It  was  an  old  principle  which  permitted  the  jury  to  be  taken 
to  the  scene  of  the  act  or  happening  under  consideration,  to 
view  the  surroundings  and  thus  have  ocular  evidence  which 
would  help  them  to  reach  a  correct  conclusion.  This  sort  of 
thing  was  more  effective  when  the  processes  of  the  law  moved 
quickly  and  little  time  elapsed  between  the  event  which  form- 
ed the  subject  of  the  trial  and  the  trial  itself.  With  the  lapse 
of  time  incidental  to  the  establishment  of  more  complicated 
machinery  of  justice,  which  took  place  between  the  happen- 
ings complained  of  and  their  investigation  by  a  trial,  a  per- 
sonal view  became  less  and  less  practicable.     It  was  then  that 

of  writing  to  illustrate  the  testimony  of  experts,  Howard  v.  Saving 
Bank,  189  111.  568,  59  N.  B.  HOC:  a  sui-vey,  Pickering  Light  &  Water 
(Co.  V.  Savage,  137  Cal.  19,  69  Pac.  846;  drawing  made  by  witness 
before  the  jui-y,  Lake  St.  Elevated  R.  R.  v.  Burgess,  200  111.  628, 
66  N.  E.  215. 

7  Cirello  v.  Express  Co.  (Sup.)  88  N.  Y.  Supp.  932. 


§  268)      PICTORIAL    EVIDENCE   AS    ORIGINAL   EVIDENCE.  421 

the  custom  of  putting  before  the  jury  pictorial  or  photographic 
representations  of  circumstances,  surroundings,  conditions, 
and  objects  bearing  upon  the  subject  of  controversy  assumed 
a  wider  development,  and  certain  principles  grew  up  applicable 
to  the  use  of  this  class  of  evidence.* 


SAME— AUTHENTICATION. 

268.  Pictorial  evidence  is  only  admissible  wlien  properly  an- 
thenticated  as  a  correct  representation  of  the  things 
portrayed. 

Whether  the  evidence  ofifered  consists  of  maps,  diagrams,- 
drawings,  pictures,  and  photographs,  ordinary  or  X-ray,  the 
first  essential  is  that  the  thing  offered  shall  be  properly  au- 
thenticated. The  value  of  a  piece  of  evidence  of  this  character' 
is  entirely  dependent  upon  its  being  a  correct  representation  or" 
a  reproduction  of  the  original,  and  verbal  testimony  must 
therefore  be  ofifered  by  some  one  who  knows  the  circumstances 
under  which  it  was  produced,  and  who  can  testify  that  it  is 
a  correct  representation  of  what  it  purports  to  be.  Testimony 
of  this  kind  is  usually  given  by  the  person  who  made  the 
drawing,  diagram,  or  map,  or  who  took  the  photograph  and 
developed  and  printed  it.  Such  person  may  know  nothing 
of  the  facts  in  issue,  and  be  unable,  as  an  independent  wit- 
ness, to  give  material  testimony ;   but,  assuming  that  the  origi- 

«  A  curious  conclusion  was  reached  in  tli,  ease  of  People  v.  Tborn, 
15G  N.  Y.  2SG,  50  N.  E.  947,  42  L.  R.  A.  o68.  In  the  couree  of  a 
murder  trial  the  jury  were  permitted  to  take  a  view  of  the  premises 
where  the  murder  was  committed.  The  prisoner,  at  his  own  re- 
quest, did  not  accompany  the  jury,  and,  when  the  verdict  of  guilty 
was  rendered,  he  raised,  on  appeal,  the  objection  that  he  had  not 
been  present  through  the  whole  trial.  The  court,  in  its  manifest  de- 
sire not  to  stamp  the  trial  as  a  nullity,  came  to  the  conclusion  that 
the  view  was  not  to  be  considered  as  part  of  the  trial,  on  the  theory 
that  the  "knowledge  acquired  by  the  jury  in  inspecting  the  prem- 
ises was  to  enable  them  to  better  xmderstand  the  evidence  and  not 
to  obtain  original  testimony."  But  the  theory  that  a  view  is  in  the 
nature  of  a  piece  of  real  evidence,  such  as  a  weapon  or  other  arti- 
cle submitted  to  tht-  jury  for  inspection,  seems  the  more  reason- 
able one.  For  a  co.ument  on  the  case  cited,  see  12  Harvard  Law- 
Rev.  212. 


422  WRITINGS.  (Ch.  14 

nal  of  the  representation  which  is  produced  in  court  is  material, 
the  witness  is  able  to  supply  the  authentication  which  makes 
the  representation  admissible.®  The  subject  at  issue  may  be 
the  condition  of  a  street  at  the  time  of  an  accident/"  the  situa- 
tion of  land  with  respect  to  the  grade  of  a  street,^  ^  the  cir- 
cumstances of  a  collision  of  railway  trains,^  ^  the  location  of 
a  stump  which  frightened  a  horse/ ^  the  character  of  an  in- 
jury to  the  person/^  or  any  one  of  many  similar  subjects 
which  may  conveniently  lend  themselves  to  the  photographic 
process;  and  in  all  these  cases  the  use  of  photographs  is  of 
daily  occurrence  in  the  courts,  where  the  necessary  testimony 
as  to  the  correctness  of  the  photograph  is  at  hand/^  The 
exclusion  of  such  testimony,  where  the  requirements  for  its  ad- 
mission are  fully  satisfied  and  it  would  be  particularly  helpful 
to  the  jury,  in  view  of  the  conflict  of  verbal  testimony,  will 
be  held  to  be  error/' 

If,  however,  there  is  not  sufficient  evidence  as  to  correct- 
ness, the  photographs  will  be  excluded/'^ 


SAME— MATERIALITY. 

26».  Pictorial  evidence  is  only  admissible  when  tlie  condition 
or  objects  represented  are  themselves  competent  and 
material  evidence. 

9  Hyde  v.  Town  of  Swanton,  72  Vt.  242,  47  Atl.  790. 

10  Miller  v.  City  of  Newt  York,  104  App.  Div.  33,  93  N.  Y.  Supp. 

227. 

11  Village  of  Grant  Park  v.  Trah,  115  111.  App.  291;  Id.,  218  111. 

51G,  75  N.   E.  1040. 

12  Maynard  v.  Navigation  Co.,  46  Or.  15,  78  Pac.  983,  68  L.  R.  A. 

477. 

13  City  of  Huntington  v.  Lusch,  33  Ind.  App.  47G,  70  N.  E.  402. 

14  People's  Gaslight  &  Coke  Co.  v.  Amphlett,  93  111.  App.  194. 
iBTish  V.  Welker,  7  Ohio  N.  P.  472;  Village  of  Grant  Park  v. 

Trah,  115  111.  App.  291;  Id.,  218  111.  516,  75  N.  E.  1040;  Miller  v. 
Dumon,  24  Wash.  648.  64  Pac.  804;  First  Nat.  Bank  v.  Wisdom's 
Ex'rs,  111  Ky.  135,  63  S.  W.  461. 

16  Lake  Erie  &  W.  R.  Co.  v.  Wilson,  189  111.  89,  59  N.  E.  573. 

17  Cunningham  v.  Railroad  Co.,  72  Conn.  244,  43  Atl.  1047;  Iro- 
quois Furnace  Co.  v.  McCrea,  91  111.  App.  337. 


§  269)      PICTORIAL    EVIDENCE   AS   ORIGINAL,   EVIDENCE.  423 

Under  this  head  properly  comes  the  principle  v^hich  requires 
that  the  situation  or  objects  which  are  put  before  the  jury 
by  the  use  of  photographs  must  have  been  in  the  same  condi- 
tion at  the  time  the  photographs  were  taken  as  they  were  at 
the  time  of  the  happening  of  the  event  in  controversy.  In  other 
words,  a  condition  which  existed  prior  to  or  subsequent  to  the 
time  in  question  would  not  be  a  material  or  competent  piece  of 
evidence,  and  therefore  a  photograph  showing  such  condition 
is  equally  incompetent.  If,  however,  the  condition  existing 
prior  or  subsequent  is  by  collateral  testimony  shown  to  be 
the  same  as  that  existing  at  the  time  of  the  event,  then  a  photo- 
graph taken  at  such  prior  or  subsequent  time  becomes  admissi- 
ble, and  the  time  which  has  elapsed  between  the  date  of  the 
photograph  and  the  date  of  the  event  under  consideration  is  im- 
material.^* 

It  follows  from  the  above  that,  where  a  piece  of  evidence  of 
this  character  has  been  put  in,  testimony  with  respect  to 
change  or  identity  of  conditions  is  admissible.^® 

It  is  on  this  principle  that  a  photograph  of  an  artificially 
reproduced  situation  will  not  be  received.  It  has  sometimes 
been  attempted  to  get  before  the  jury  the  circumstances  of 
an  accident  by  endeavoring  to  reproduce,  in  part,  at  least,  the 
relative  location  of  the  objects  and  persons  concerned,  and 
then  to  take  a  photograph.  The  courts  have  held,  however, 
that  such  photograph  would  not  be  received.^" 

If,  however,  it  is  not  shown  that  conditions  are  the  same, 
then,  no  matter  how  little  time  has  elapsed,  the  photograph  is 
valueless  as  evidence,  and  will  be  excluded,'^ 

18  Hyde  v.  Town  of  Swanton,  72  Vt.  242,  47  Atl.  790;  People's 
Gaslight  &  Coke  Co.  v.  Amphlett,  93  111.  App.  194. 

19  Town  of  Waterbury  v.  Ti-action  Co.,  74  Conn.  1.52,  50  Atl.  3. 

2  0  Stewart  v.  Railroad  Co.,  78  Minn.  110,  80  N.  W.  855;  Babb  v. 
Paper  Co.,  99  Me.  298,  59  Atl.  290. 

21  In  Harris  v.  City  of  Quincy,  171  Mass.  472,  50  N.  E.  1042,  the 
photograph  was  taken  of  a  sidewalk  upon  the  morning  following 
the  accident.  The  accident  was  caused  by  ice.  and  it  was  held  that, 
it  not  appearing  that  the  ice  was  in  the  same  condition  as  at  the 
time  of  the  accident,  the  photograph  might  be  excluded.  Chicago  & 
A   Ry   Co.  V.  Corson,  101  111.  App.  115;  Id.,  198  111.  98.  64  N.  E.  739. 


424  WRITINGS.  (Ch.  14 


SAME— ACCESSIBILITY  OF  THINGS  REPRESENTED. 

270.    Pictorial  evidence  is  not  admissible  ^vhere   tlie  original 
objects  are  before  or  accessible  to  the  jury. 

A  third  essential  to  the  admissibiHty  of  photographs  is  that 
they  shall  serve  to  put  before  the  jury  facts  which  the  jury 
itself  cannot  personally  view,  and  therefore,  where  the  original 
situation  or  object  which  the  photograph  seeks  to  reproduce 
is  before  the  jury,  the  photograph  is  inadmissible.  Where, 
for  instance,  the  jury  has  personally  viewed  the  premises,  it  is 
proper  to  exclude  photographs.-- 

The  admission  of  evidence  of  this  character  is  largely  with- 
in the  discretion  of  the  court,  whose  duty  it  is  to  pass  upon  the 
evidence  offered  to  bring  it  within  the  principles  of  admissi- 
bility above  stated. ^^ 

Where  the  evidence  is  likely  to  unduly  authorize  the  sympa- 
thy of  the  jury,  or  where  considerations  of  decency  are  in- 
volved, the  court  will  very  frequently  decline  to  receive  photo- 
graphs.^* 

It  is  always  permissible  for  the  opposing  party  to  offer  tes- 
timony to  discredit,  explain,  or  weaken  the  effect  of  photo- 
graphs or  other  evidence  of  this  character.-^ 

22Dobsou  V.  City  of  Philadelphia.  7  Pa.  Dist.  R.  321;  Baxter  v. 
Railway  Co.,  104  Wis.  307,  80  N.  W.  G44;  Clary-Squire  v.  Publish- 
ing Co.,  58  App.  Div.  302.  68  N.  Y.  Supp.  1028. 

^3  Frith  V.  Frith,  Prob.  74  (Eng.);  Lake  Erie  &  W.  R.  Co.  v.  Wil- 
son, 87  111.  App.  300. 

24  Selleck  v.  Citj'  of  Janesville,  104  Wis.  570,  80  N.  W.  944,  47 
L.  R.  A.  691,  70  Am.  St.  Rep.  892;  Guhl  v.  Whitcomb.  109  Wis.  09. 
85  N.  W.  142,  83  Am.  St.  Rep.  889. 

25  De  Forge  v.  Railroad  Co.,  178  Mass.  59,  59  N.  E.  669,  86  Am. 
St.  Rep.  464.  In  this  case,  upon  the  subject  of  the  extent  of  an 
injury  to  a  brakeman's  left  foot,  an  X-ray  picture  of  both  feet  was 
admitted  In  evidence.  The  picture  was  printed  from  a  glass  plate, 
upon  which  was  marked  in  lead  pencil  the  letters  "R."  and  "L." 
The  defense  offered  to  show  that  the  X-ray  i)laeed  the  right  foot 
on  the  right  side  of  the  plate  and  the  left  foot  on  the  left  side,  and 
that  in  printing  sensitized  paper  the  objects  would  be  reversed, 
and  that,  therefore,  the  picture  claimed  to  be  a  picture  of  the  left 
foot  was  in  reality  a  picture  of  the  right  foot.  This  evidence  wa& 
excluded,  and  it  was  held  error. 


272)  BEST    EVIDENCE    RULE.  425 


•WRITINGS   IN  NARROAV   SENSE. 

271.  ■Writings  in  the  narrower  sense  are  seldom  dealt  with 
as  physical  objects  in  their  nse  as  evidence- 
It  is  rather  as  the  embodiment  of  certain  operative  acts  of 
parties,  or  as  the  statement  of  that  which  has  previously  ex- 
isted, that  they  are  taken  up.  A  will  and  a  deed,  for  instance, 
are  in  themselves  operative ;  they  act ;  by  reason  of  their  ex- 
istence that  which  belongs  to  one  party  passes  to  another.  The 
questions  which  arise  with  respect  to  the  use  of  documents  as 
evidence  are  many  and  various.  Of  what  are  they  evidence? 
What  is  sufficient  proof  of  their  authenticity  or  identification? 
How  far  may  their  contents  be  introduced?  How  may  their 
production  in  court  be  compelled?  These  are  a  few  of  the 
matters  which  have  occupied  the  attention  of  the  courts  in 
connection  with  writings. 

BEST   EVIDENCE  RULE. 

272.  A  vrriting  is  the  best  evidence  of  its  own  contents,  and 
must  be  introduced  unless  it  has  been  lost  or  destroy- 
ed, or  its  absence  is  otherwise  satisfactorily  account- 
ed   for.  2  8 

In  its  modern  application,  the  best  evidence  rule  amounts  to 
little  more  than  the  requirement  that  the  contents  of  a  writ- 
ing must  be  proved  by  the  introduction  of  the  writing  it- 
self, unless  its  absence  be  satisfactorily  accounted  for.  In 
its  origin  the  rule  known  as  the  "best  evidence"  was  some- 
thing entirely  different.  In  fact  it  related  to  all  classes  of  evi- 
dence, and  was  a  broadening,  rather  than  a  narrowing,  rule. 
It  meant  that  the  best  evidence  of  which  the  nature  of  the  case 
would  permit  was  receivable.  It  has  been  pointed  out  by  a 
learned  writer  that  this  rule  has  been  the  subject  of  a  very 
peculiar  development.-'     As  now  understood,  the  rule  is  one 

2  6  Lynch  V.  Gierke,  3  Salk.  154. 

27  Tliayer,  in  his  Cases  on  Evidence  (2d  Ed.  p.  778),  describes  it  as 
follows:     "During  the  latter  part  of  the  seventeenth  century   and 


426  WRITINGS.  (Ch.  14 

relating  to  writings  only.  It  extends  to  all  writings,  how- 
ever, and  is  not  confined  to  those  which  relate  to  matters  re- 
quired by  law  to  be  in  writing.^ ^ 

To  the  statement  that  the  rule  extends  to  all  writings  there 
must  be  a  slight  qualification.  Where  the  writing  to  be  proved 
consists  of  a  notice,  there  it  is  held  that  the  rule  does  not  ap- 
ply, and  that  the  contents  may  be  proved  by  a  copy,  without 
effort  to  get  the  original.  A  notice  of  dishonor  of  a  note,  no- 
tice to  quit  by  landlord  to  tenant,  an  attorney's  bill  (in  Eng- 
land), are  some  illustrations  of  this  qualification.^^     It  some- 

the  whole  of  the  eighteenth,  while  rules  of  evidence  were  forming, 
the  judges  and  text  writers  were  in  the  habit  of  laying  down  two 
principles,  namely :  (1)  That  one  must  bring  the  best  evidence  that 
he  can ;  and  (2)  that,  if  he  does  this,  it  is  enough.  These  principles 
were  the  beginnings  in  the  endeavor  to  give  consistency  to  the  sys- 
tem of  evidence  before  juries.  They  were  never  literally  enforced; 
they  were  principles,  and  not  exact  rules;  but  for  a  long  time  they 
afforded  a  valuable  test.  As  rules  of  evidence  and  exceptions  to  the 
rules  became  more  definite,  the  field  for  the  application  of  the  gen- 
eral principle  of  the  'best  evidence'  was  narrower.  But  it  was  often 
resorted  to  as  a  definite  rule  and  test  in  a  manner  which  was  very 
misleading.  This  is  still  occasionally  done,  as  when  we  are  told  in 
McKinnon  v.  Bliss,  21  N.  Y.  218,  that  'it  is  a  universal  rule,  founded  in 
necessity,  that  the  best  evidence  of  which  the  nature  of  the  case  ad- 
mits is  always  receivable.'  *  *  *  Always  the  chief  example  of  the 
'best  evidence'  principle  was  the  rule  about  proving  the  contents  of  a 
writing.  But  the  origin  of  this  rule  about  writings  was  older  than  the 
'best  evidence'  principle,  and  that  principle  may  well  have  been  a  gen- 
eralization from  this  rule,  which  appears  to  be  ti'aceable  to  the  doc- 
trine of  profert.  That  doctrine  required  the  actual  production  of 
the  instrument  which  was  set  up  in  pleading.  In  like  manner  it 
was  said,  in  dealing  with  the  jury,  that  a  jury  could  not  specifical- 
ly find  the  contents  of  a  deed  unless  it  had  been  exhibited  to  them 
in  evidence.  And  afterwards  when  the  jury  came  to  hear  testimony 
fi'om  witnesses  it  was  said  that  witnesses  could  not  undertake  to 
speak  to  the  contents  of  a  deed  without  the  production  of  the  deed 
itself." 

2  8  1  Greenl.  Ev.  (15th  Ed.)  §§  87.  88. 

2  9  Quinley  v.  Atkins,  9  Gray  (Mass.)  370.  In  Morrow  v.  Com., 
48  Pa.  30.5,  308,  the  notice  was  a  supervisor's  notice  to  remove  ob- 
structions. In  Gethin  v.  Walker,  59  Cal.  502,  .506,  the  notice  was  a 
notice  of  rescission  of  contract.  As  to  attorney's  bill,  see  Colling 
V.  Treweek,  6  Barn.  &  C.  394,  398.  In  Eisenhart  v.  Slaymaker,  14 
Serg.  &  R.  (Pa.)  1.58,  156,  Gibson,  J.,  gives  the  reason  for  the  rule  in 
respect  to  notices  as  follows:    "Every  written  notice  is,  for  the  best 


§  272)  BEST   EVIDENCE   RULE.  427 

times  happens  that  there  are  a  number  of  dupHcates  of  the 
same  document,  as  in  case  of  placards,  newspapers,  etc.  In 
such  case,  to  prove  the  contents  any  one  of  the  several  copies 
is  admissible.^"  Where  the  writing  is  not  in  issue,  but  mere- 
ly collateral  to  it,  it  is  held  that  the  rule  has  no  application, 
and  parol  evidence  may  be  given,  even  though  it  covers  the 
contents  of  the  writing.^^ 

An  interesting  question  arises  where  the  allegations  that  a 
book  or  documents  do  not  contain  certain  matter.  It  has  been 
held  here  that  oral  testimony  of  any  one  who  has  examined 
the  writing  may  be  given  in  support  of  the  allegation.  In  a 
certain  sense  the  writing  itself  may  certainly  be  regarded  as 
the  best  evidence  of  what  it  does  not  contain,  as  well  as  what 
it  does  contain,  yet  there  may  not  be  the  same  difficulty  in  es- 
tablishing that  a  certain  matter  is  not  contained  in  a  writing  as 
in  determining  with  exactness  its  actual  contents,  and  there 

of  all  reasons,  to  be  proved  by  a  duplicate  original;  for,  if  it  were 
otherwise,  the  notice  to  produce  the  original  could  be  proved  only 
in  the  same  way  as  the  original  notice  itself,  and  thus  a  fresh  neces- 
sity would  be  constantly  arising  ad  infinitum  to  prove  notice  of  the 
preceding  notice,  so  that  the  party  would  at  every  step  be  receding 
instead  of  advancing." 

30  Rex  V.  Watson,  2  Starkie,  116,  129.  So,  also,  where  a  contract 
is  executed  in  duplicate,  either  is  admissible.  Cleveland  &  T.  R.  Co. 
V.  Perkins,  17  Mich.  296,  299.  A  carbon  copy,  made  at  the  same 
time  as  a  letter,  has  been  held  admissible,  without  notice  to  produce, 
as  being  a  duplicate  original.  Chesapeake  &  O.  R.  H.  Co.  v.  Stock. 
104  Va.  97,  51  S.  E.  161.  In  a  comment  upon  this  case  in  19  Har- 
vard Law  Rev.  123,  it  is  suggested  that  the  same  rule,  relating  to 
carbon  copies,  should  be  extended  to  letterpress  copies,  and  that 
both  should  be  allowed  to  be  introduced  as  primary  evidence. 

3iCoonrod  v.  Madden,  126  Ind.  197,  25  N.  E.  1102.  In  this  case 
suit  was  brought  on  a  promissory  note,  and  the  defense  was  pay- 
ment. The  defendant  proved  the  giving  of  a  check  to  plaintiff,  and 
the  plaintiff  was  allowed  to  testify,  under  objection,  that  the  check 
was  received  by  him  in  payment  of  another  note,  giving  the  date 
ajid  amount  of  the  note,  rate  of  interest,  etc.,  which  note  he  had 
surrendered  to  defendant.  No  notice  to  produce  had  been  given. 
This  was  held  proper,  the  appellate  court  saying  (page  199,  120 
Ind.,  and  page  1102,  25  N.  E.):  "Tlie  rule  which  requires  the  produc- 
tion'of  written  instruments  in  evidence  has  no  application  when  the 
instrument  is  merely  collateral  to  the  issue,  and  where  the  fact  to 
be  proved  relates  to  a  subject  distinct  from  the  writing."  Ledford 
v.  Emerson,  138  N.  C.  502,  51  S.  E.  42. 


428  WRITINGS.  (Ch.  14 

may,  therefore,  be  less  reason  for  the  enforcement  of  the 
best-evidence  rule.^^ 

An  interesting  question  arises  in  respect  to  the  character 
of  such  things  as  tags,  cards,  or  small  articles  with  names  or  in- 
scriptions upon  them,  where  a  few  words  only  are  used.  If 
they  are  regarded  as  writings,  the  best  evidence  rule  applies ; 
while,  if  they  are  treated  as  things,  their  existence,  appearance, 
contents,  etc.,  may  be  proved  in  the  ordinary  way  by  oral  tes- 
timony.^^ 

There  is  a  distinction  between  proving  a  fact  which  has  been 
put  in  writing  and  proving  the  writing  itself.  Because  a  fact 
has  been  described  in  a  writing  does  not  exclude  other  proof  of 
the  fact.^*  For  example,  the  proceedings  of  a  corporate  meet- 
ing of  stockholders  or  directors  are  facts.  They  are  ordinarily 
reduced  to  writing  in  the  minutes  of  the  meeting.  Yet  they 
may  still  be  proved  by  independent  oral  testimony.^ ^ 

It  is  the  same  with  proof  of  the  testimony  of  a  witness  up- 
on a  former  trial.  The  stenographer's  minutes  are  not  the 
only  evidence  which  may  be  given.  Oral  evidence  of  a  per- 
son who  was  present  at  the  trial  and  heard  the  testimony  is 
admissible.^® 

But,  suppose  the  dispute  be  as  to  the  minutes  themselves  ; 
then  the  writing  becomes  the  best  evidence  of  what  the  minutes 

3  2McPhelemy  v.  McPhelemy,  78  Conn.   ISO.  61  Atl.  477. 

3  3  See  Reg.  v.  Farr,  4  Fost.  &  F.  .3.36,  where  an  inscription  on  a 
ring  Avas  not  allowed  to  be  described  orally.  But  in  Rex  v.  Hunt. 
3  Barn.  &  Aid.  566,  inscriptions  on  flags?  and  banners  were  allowed 
to  be  described,  and  in  Com.  v.  Morrell,  99  Mass.  542,  oral  testimony 
of  the  writing  on  a  valise  tag  was  received. 

34  A  tenancy  is  a  fact.  It  is  a  relation  created  by  an  agreement; 
and  the  agreement  may  be  in  writing;  yet  this  does  not  preclude 
oral  proof  of  the  fact  of  tenancy.  Rex  v.  Inhabitants  of  Holy  Trini- 
ty, 7  Barn.  &  C.  611.  But  see,  contra,  Doe  v.  Harvey,  1  Moore  &  S. 
.374,  378.  Receipt  of  money  or  goods  is  a  fact  which  can  be  proved 
by  parol,  although  a  written  receipt  may  have  been  given.  Jacob 
v.  Lindsay,  1  East,  460;  Steele  v.  Lord,  70  N.  Y.  280,  26  Am.  Rep. 
602;  Kingsbury  v.  Moses,  45  N.  H.  222. 

3  5  Rex  V.  Hunt,  3  Barn.  &  Aid.  .566,  572.  Contra.  Dawson  v.  Town 
of  Orange,  78  Conn.  96,  61  Atl.  101. 

36  Weinhandler  v.  Brewing  Co..  46  Misc.  Rep.  .584.  92  N.  Y. 
Supp.  792.  But  see  Estes  v.  Railroad  Co.,  Ill  Mo.  App.  1,  85  S.  W. 
909. 


§  273)  BEST   EVIDENCE    RULE.  429 

are,  and  must  be  produced.  Upon  the  cross-examination  of  a 
witness,  as  has  been  said  in  the  preceding  chapter,  questions 
may  be  put  as  to  the  contents  of  writings  previously  made  by 
the  witness,  and  inconsistent  with  the  present  testimony  of  the 
witness,  without  the  production  of  the  writings  themselves. 
The  purpose  being  to  lay  a  foundation  for  the  subsequent  con- 
tradiction of  the  witness  by  proof  of  the  writings,  the  cross- 
examination  is  only  preliminary,  and  the  best  evidence  rule 
does  not  apply. ^'^ 


SAME— ORIGINAL    DOCUMENTS    REQUIRED. 

273.    When  the  best  evidence  rule  is  applicable,  the  original 
document  only   satisfies  its  requirement,   except — 
EXCEPTION— In  the   case  of  public   documents  and  records, 
vtrheu   exemplified  copies   are   received. 

The  best  evidence  required  by  the  rule  means  the  original 
document.  If  compliance  with  the  rule  be  not  excused  in  some 
way,  its  requirements  are  strictly  enforced,  and  no  substitute 
will  be  allowed  for  the  original. ^^  Neither  a  letterpress  copy 
nor  a  photograph  will  be  received.  It  is  meant,  of  course, 
that  such  copies  will  not  be  received  if  it  appears  that  there 
is  no  good  excuse  for  not  producing  the  original. 

The  inconvenience  of  bringing  public  records  into  court, 
and  their  accessibility  for  the  purpose  of  comparison  and  cor- 
rection of  copies,  led  to  the  practice  of  receiving  exemplified 
copies  wherever  it  became  necessary  to  prove  them  in  evi- 
dence,^^  and  statutory  provisions  usually  provide  the  manner  in 

3  7  Ante,  pp.  412,  413. 

3  8  Foot  V.  Bentley,  44  N.  Y.  lOG.  171,  4  Am.  Eep.  652. 

3  9  Lynch  y.  Gierke.  3  Salk.  154.  From  IMarsh  v.  Collnett,  2  Esp. 
<3G5,  we  take  the  following::  "Lord  Kenyon  said  thoy  wore  piiblic 
books,  which  public  convenience  required  should  not  be  removed 
from  place  to  place,  and,  though  the  books  were  in  court,  he  would 
not,  for  the  sake  of  example,  break  in  upon  a  rule  founded  on  that 
principle  ot  public  convenience,  and  require  the  production  of  the  orig- 
inal, but  admit  a  copy  from  them  in  evidence."  The  books  referred  to 
were  Bank  of  England  records  of  stock  transfers,  and  the  origi- 
nals happened  to  be  in  court.    See,  also.  Maun  v.  Carey,  3  Salk.  155. 


430  WRITINGS.  (Ch.  14 

which  such  copies  may  be  obtained  and  used.'*"  The  practice 
thus  substitutes  the  exempHfied  copy  for  the  original,*^  and 
the  best  evidence  rule  appHes  with  even  more  strictness  to 
such  copy  than  to  the  original  in  the  case  of  other  writings, 
for  the  reason  that  the  law  does  not  recognize  any  excuse  for 
failure  to  produce  an  exemplified  copy.  Such  copy  can  al- 
ways be  obtained,  and,  if  one  be  lost,  another  can  be  procured. 
Hence  a  duly  examined  and  compared  copy  is  always  re- 
quired.*^ 

When  the  proof  relates  to  public  statutes  in  foreign  juris- 
dictions, the  question  may  come  up  in  such  manner  that  oral 
testimony  may  be  competent.  If  the  question  be  as  to  the  text 
of  the  statute,  then,  of  course,  the  rule  is  applicable ;  but,  if  it 
be  as  to  the  statutory  law, — i.  e.,  the  statute  as  interpreted  by 
the  courts — the  oral  testimony  of  an  expert  becomes  admissi- 
ble." 


SAME— "WHEN    SECONDARY    EVIDENCE    ADMISSIBLE. 

274.  Failure  to  produce  tlie  original  may  be  excused  by  proof 
that  it  has  been  lost  or  destroyed,  is  out  of  the  juris- 
diction of  the  court,  or  is  in  the  hands  of  the  adverse 
party,  who  has  failed  to  produce  it  on  demand  duly 
made. 

The  loss  or  destruction  of  a  writing,  if  satisfactorily  shown, 
opens  the  door  for  the  admission  of  secondary  evidence  as  to 
its  contents.  If  loss  be  claimed,  it  must  be  shown  that  diligent 
search  has  been  made,  and  every  reasonable  effort  exhausted  to 

40  See  Rev.  St.  U.  S.  §  882  et  seq.  [U.  S.  Comp.  St.  1901,  p. 
669],  and  Code  Civ.  Proc.  N.  Y.  tit.  4  (Documentary  Evidence)  §§ 
921-956. 

41  Doe  V.  Ross,  7  Mees.  &  W.  102,  per  Lord  Abinger,  C.  B.,  page 
106. 

4  2  Hill  V.  Packard,  5  Wend.  (N.  Y.)  375,  387. 

43  American  Life  Insurance  &  Trust  Co.  v.  Rosenagle,  77  Pa.  507, 
515 ;  Tlie  Pawasbick,  2  Lowell  (U.  S.)  142,  Fed.  Cas.  No.  10,851.  See, 
also.  Hill  v.  Packard,  5  Wend.  (N.  Y.)  375,  384.  But  see  Traders' 
Nat.  Bank  v.  Jones,  104  App.  Div.  433,  93  N.  Y.  Supp.  768,  wbere, 
under  tbe  statute  (section  942,  Code  Civ.  Proc.)  providing  for  proof 
of  a  foreign  statute  by  introduction  of  an  autborized  publication, 
it  was  beld  tbat  parol  evidence  was  inadmissible. 


§  274)  BEST   EVIDENCE   RULE.  431 

find  it."  If  destruction  be  the  excuse,  and  it  is  sufficiently 
proved  that  the  writing  is  no  longer  in  existence,  secondary 
evidence  is  at  once  admissible.*^  Destruction  at  the  instance 
or  by  the  hand  of  the  party  offering  the  proof  is  not  sufficient 
unless  reasonable  cause  be  shown  for  his  destroying  it.*^ 
The  question  of  what  will  be  satisfactory  proof  of  the  loss 
or  destruction  of  a  writing  is  a  preliminary  one  for  the  court, 
and  the  matter  is  largely  one  of  discretion.  Proof  of  reason- 
able effort  to  find  it,  or  of  probable  destruction,  is  sufficient.''^ 
If  the  writing  is  out  of  the  jurisdiction  of  the  court,  and  not 
under  the  control  of  the  party  offering  the  proof,  so  that  it 
cannot  be  reached  by  subpoena  duces  tecum,  secondary  evi- 
dence is  admissible.''^  Where  it  is  in  the  hands  of  the  adverse 
party,  all  that  is  required  in  order  to  lay  the  foundation  for 
secondary  evidence  is  reasonable  demand  on  him  to  produce 
it." 

44  Saltern  v.  Melhuish,  Amb.  247,  per  Lord  Chancellor  Hardwicke, 
page  248.  The  rule  is  stated  as  follows  in  Kearney  v.  Mayor,  etc., 
of  City  of  New  York,  92  N.  Y.  617,  621,  by  Rapallo,  J.:  "The  gen- 
eral rule  is  that  the  party  alleging  the  loss  of  a  material  paper, 
where  such  proof  is  necessary  for  the  purpose  of  giving  secondary 
evidence  of  its  contents,  must  show  that  he  has  in  good  faith  ex- 
hausted to  a  reasonable  degree  all  the  sources  of  information  and 
means  of  discovery  which  the  nature  of  the  case  would  naturally 
suggest,  and  which  were  accessible  to  him."  See,  also,  Elwell  v. 
Cunningham,   74  Me.  127. 

4  5  For  one  of  the  early  cases,  see  Medlicot  v.  .Toyner  (1669)  2  Keb. 
546,  where  the  original  was  burned.  This  case  is  printed  in  Thayer, 
Cas.  Ev.  (2d  Ed.)  p.  780.  See  Graton  v.  Holliday-Klotz  Co.,  189  Mo. 
322,  87  S.  W.  37. 

4  6  Blade  v.  Noland,  12  Wend.  (N.  Y.)  173,  27  Am.  Dec.  126;  The 
Count  Joannes  v.  Bennett,  5  Allen  (Mass.)  169,  81  Am.  Dec.  738. 

47  Mason  v.  Libbey,  90  N.  Y.  683;  Elwell  v.  Mersick,  50  Conn.  272, 
275.  See,  also,  remark  of  Lord  Ellonborough,  29  How.  St.  Tr.  437, 
trial  of  Mr.  Justice  Johnson,  quoted  in  Thayer,  Cas.  Ev.  (2d  Ed.)  p. 

791. 

48  Binney  v.  Kussell,  109  Mass.  55;  Mauri  v.  Heffernan,  13  Johns. 

(N.  Y.)  58,  73. 

4  9  For  one  of  the  earliest  cases,  see  Bradford's  Case  (1633),  case 
24  in  Clayton's  Reports  and  Pleas  of  Assizes  at  York  (page  15),  also 
printed  in  Thayer,  Cas.  Ev.  (2d  Ed.)  p.  780.  See,  also.  Com.  v.  Emery, 
2  Gray  (Mass.)  80 ;  British  American  Ins.  Co.  v.  Wilson,  77  Com.  .")9, 
60  Atl.  293.  The  nature  of  the  action  as  shown  in  the  pleadings  is  held 
sufficient  notice  in  certain  cases,  as,  for  example,  where  it  is  brought 


432  WRITINGS.  (Ch.  14 

The  notice  to  produce  is  required  for  the  benefit  of  the  par- 
ties to  whom  the  notice  is  given,  and  the  fact  that  such  party 
cannot  be  compelled  to  testify  is  no  reason  for  dispensing 
with  the  notice.^" 

A  notice  to  produce  is  the  usual  form,  but  an  immediate  de- 
mand in  open  court,  where  it  appears  the  document  is  in  court, 
is  deemed  sufificient.^^  A  somewhat  different  question  arises 
where  the  writing  is  in  the  possession  of  a  third  person,  and 
such  person,  on  being  served  with  a  subpoena  duces  tecum,  re- 
fuses to  produce  it.  Where  the  third  person  has  some  legal 
right  to  the  document,  which  renders  his  refusal  proper,  or 
where  he  refuses  on  the  ground  that  the  document  might 
tend  to  criminate  him,  it  is  held  that  secondary  evidence  is  al- 
lowable, since  the  party  has  done  all  in  his  power  to  have  the 
original  produced ;°-  and  there  seems  to  be  no  good  reason 
why  the  doctrine  should  be  different  when  the  third  person 
contumaciously  refuses  to  produce  the  document.  Punish- 
ment for  contempt  "or  an  action  for  damages  against  the  wit- 
ness would  be  poor  compensation  to  the  party  injured  by  the 
witness'  refusal.  Where  an  admission  of  the  contents  of  the 
document  by  the  adverse  party  can  be  shown,  there,  if  the 
character  of  an  admission  be  considered,  it  would  seem  the. 
best  evidence  rule  should  not  apply.  An  admission,  in  this 
case,  as  it  is  in  any  other,  is  a  fact  which  excuses  proof. 
There  is,  however,  some  difference  among  the  authorities  in 
this  country  as  to  allowing  proof  of  admission  of  contents.^'' 

It  will  be  noted  that  in  the  case  of  a  writing  which  cannot 

to  foreclose  a  mortgage.  In  such  case  the  defendant  need  not  give 
notice  to  the  plaintiff  to  produce  the  mortgage.  Howell  v.  Huyck,  2 
Abb.  Dec.  (N.  Y.)  423;  Wabash  R.  Co.  v.  Johnson,  114  III.  App.  545. 
so  The  conclusion  reached  in  State  v.  McCauley,  17  Wash.  88,  49 
Pac.  221,  while  contrary,  it  is  submitted,  is  erroneous. 

51  Dwyer  v.  Collins,  7  Exch.  G:J9,  646.  Writings  which  have  been 
called  for  and  refused  cannot  be  used  afterwards  by  the  party  re- 
fusing to  produce  them.     Gage  v.  Campbell,  1.31  Mass.  566. 

52  Doe  V.  Ross,  7  Mees.  &  W.  102,  per  Parke,  B.,  page  121;  Mills 
V.  Oddy,  6  Car.  &  P.  728,  732. 

53  As  to  the  English  rule  where  admissions  are  received,  see  Slat- 
terie  v.  Pooley,  6  Mees.  &  W.  664.  To  the  same  effect  is  Smith  v. 
Palmer,  6  Cush.  (Mass.)  SIS;  Contra,  Sherman  v.  People,  13  Hun 
(N.  Y.)  575. 


§  275)  BEST   EVIDENCE   RULE.  433 

be  produced  because  of  one  of  the  reasons  above  specified, 
there  is  a  preliminary  matter  to  be  attended  to  before  secondary 
evidence  becomes  admissible.  This  is  proof  of  the  actual  ex- 
istence of  the  writing  at  a  former  time.  Proof  of  the  loss,  de- 
struction, or  other  facts  relied  upon  as  an  excuse  for  failure 
to  produce  does  not  always  involve  proof  of  the  existence  in 
the  sense  in  which  the  court  requires  it.^*  If  the  previous  ex- 
istence of  a  document  is  not  questioned,  evidence  of  a  diligent 
search  for  it  is  sufficient  to  let  in  secondary  evidence.  If, 
however,  it  be  denied  that  the  writing  ever  existed,  either  in 
fact  or  in  law,  a  question  is  presented  which  requires  certainty 
of  proof  before  proof  of  the  contents  can  be  introduced.^' 
Where  the  writing  is  one  under  which  parties  to  the  suit 
claim  rights,  as  in  case  of  a  contract,  deed,  or  will,  the  con- 
tents must  be  proved  with  certainty,  or  the  courts  cannot  give 
effect  to  the  instrument,  even  if  its  previous  existence  be  suffi- 
ciently proved.'^' 


SAME— KINDS    OF    SECONDARY    EVIDENCE. 

275.  Where  the  production  of  the  original  document  is  ex- 
cused, any  sort  of  secondary  evidence  v^hich  is  rele- 
vant and  competent  is  allowed.  There  are  no  degrees 
of   secondary   evidence. 

Where  the  circumstances  are  such  that  secondary  evidence 
may  be  introduced,  a  question  arises  as  to  what  sort  of  sec- 
ondary evidence  will  be  allowed.  It  has  been  said  that  where 
there  are  different  kinds  of  secondary  evidence  the  best  class 

B*  1  Greenl.  Ev.  (15th  Ed.)  §  558.  note  1, 

5  5  Newell  V.  Homer,  120  Mass.  277,  283,  -was  a  case  where  It  was 
sought  to  prove  a  lost  will,  but  the  evidence  of  the  existence  of  such 
a  will  at  the  time  of  the  testator's  death  was  so  slight  that  the 
court  refused  probate  of  copies  offered.  See,  also,  Brown  v. 
Brown,  8  El.  &  Bl.  876.  In  a  very  early  case  (Rex  v.  Culpepper 
[1G96]  Skm.  673)  Holt,  C.  J.,  says:  "Though  in  the  case  of  a  deed 
lost  or  burnt  they  would  admit  a  copy  or  counterpart  or  the  contents 
to  be  given  in  evidence,  yet  they  never  permitted  it  except  it  be 
proved  there  was  such  a  deed  executed."  See  Carpenter  v.  Jones, 
76  Ark.  163,  88  S.  W.  871. 

5  6  Davis  V.  Slgourney,  8  Mete,  (ilass.)  487. 

m'kelv.ev.(2d  ED.)— 28 


434  WRITINGS.  (Ch.  14 

must  be  produced ;  ^^  but  the  impracticability  of  classifying 
this  sort  of  evidence  seems  sufficient  for  not  extending  the  prin- 
ciple of  the  rule  beyond  the  original  writing.^^  It  does  not 
follow,  however,  that  the  door  will  be  opened  to  evidence  that 
is  uncertain  or  unreliable.  While  there  is  no  general  rule 
which  will  exclude  any  particular  class  of  evidence,  it  must  ap- 
pear to  be  of  a  kind  that  will  fairly  justify  belief.^''  A  copy 
of  a  press  copy  of  a  letter  has  been  allowed  where  it  appeared 
that  a  copy  was  a  correct  transcript.® ** 


PRODUCTION  OF  DOCUMENTS. 

276.    The  production  of  documents  may  be   compelled  by  the 
court — 

(a)  "Wlien  they   are  in  the  hands   of  a  third  person,  by  the 

subpoena  duces  tecum.  Disobedience  may  be  punished 
as   contempt   of   court. 

(b)  'When  in  the  hands  of  a  party  to  the  suit,  by  a  subpoe- 

na duces  tecum,  or  by  an  order  to  produce.  Disobedi- 
ence may  be  punished  as  a  contempt  of  court.  Sec- 
ondary evidence  may  be  introduced,  and  the  offending 
party  dei^rived  of  the  subsequent  use  of  the  document 
as  evidence. 

If  we  suppose  that  a  document  becomes  material  to  the  is- 
sues in  an  action,  the  first  question  which  arises  is  as  to  how 
it  may  be  obtained.  Let  it  be,  for  instance,  in  the  hands  of  a 
third  party,  it  must  first  be  brought  into  court  before  it  can 
be  used.  The  law  has  always  provided  a  way  of  compelling  the 
production  of  a  document  in  court,  as  it  has  of  compelling  the 

57  See  note  2  to  section  84  in  1  Greenl.  Ev.  (1.5th  Ed.)- 

58  Goodrich  v.  Weston,  102  Mass.  362,  3  Am.  Rep.  4G9;  Cameron 
V.  Peck,  37  Conn.  55.5;  Doe  v.  Ross,  7  Mees.  &  W.  102.  But  see  Cor- 
nett  Y.  Williams,  20  Wall.  (U.  S.)  22G,  246,  22  L.  Ed.  254,  where  the 
United  States  Supreme  Court  refused  to  go  to  the  length  of  holding 
there  were  no  degrees  of  secondary  evidence. 

5  9  Hearsay  evidence  will  not  be  allowed.  In  Nichols  v.  Kingdom 
Iron  Ore  Co.,  56  N.  Y.  618,  evidence  of  a  witness  who  had  heard  an- 
other party  read  the  instnnnent  was  held  inadmissible. 

60  Goodrich  v.  Weston,  102  Mass.  ,362,  3  Am.  Rep.  469.  But  see 
Ford  v.  Cunningham,  87  Cal.  200,  25  Pac.  403.  where  other  evidence 
was  refused,  it  being  shown  that  press  copies  were  in  existence. 


§§  277-279)      AUTHENTICATION    OF   DOCUMENTS.  435 

attendance  of  a  witness.  The  subpoena  duces  tecum  directed 
the  witness  to  produce  the  document.  The  enforcement  of 
the  command  lay  in  the  power  of  the  court  to  punish  disobedi- 
ence as  a  contempt.**^  If  the  document,  therefore,  was  known 
to  be  in  the  hands  of  a  third  party,  its  production  was  an  easy 
matter.  Suppose,  however,  that  it  was  in  the  hands  of  the 
other  party  to  the  suit;  the  court  could  then  summarily  order 
its  production,  or  could  issue  a  subpoena  in  the  usual  way.®^ 
If  the  document  was  not  produced  under  the  order  of  the  court 
or  under  a  notice  to  produce  served  by  the  adversary,  the 
party  failing  to  produce  it  lost  the  benefit  of  the  best  evidence 
rule;  that  is,  he  could  not  insist  upon  proof  of  the  contents 
of  the  document  by  the  document  itself,  but  secondary  evidence 
was  allowed.  In  addition  to  this,  the  court  might  and  fre- 
quently did  refuse  to  allow  the  offending  party  to  use  the  docu- 
ment in  support  of  his  own  case.®^  Added  to  this  was  the  fur- 
ther fact  that  refusal  to  produce  a  document  called  for  might 
be  commented  on  by  the  opposing  counsel,  and  the  jury  legit- 
imately infer  that  its  contents  were  unfavorable  to  the  in- 
terests of  the  party  withholding  it. 


AUTHENTICATION    OF   DOCUMENTS— ATTESTED    DOCU- 
MENTS. 

277.  There  are  two  kinds  of  documents  whicli  are  recognized 

by   tlie   la^v  in   respect   to    tlie   manner   of   authentica- 
tion— attested  and  unattested. 

278.  An  attested  document  must  be  proved  by  the  attesting 

Tpitness. 

279.  An   unattested   document    must   be    proved   by    testimony 

as   to  the  handwriting  of  the  maker. 

The  introduction  in  evidence  of  a  w-riting  is  not  accom- 
plislied  when  the  document  is  produced  in  court.    There  is  still 

61  Bull  V.  Loveland,  10  Pick.  (Mass.)  9,  14. 

62  The  subpoena  duces  tecum  at  the  present  day  is  used  indis- 
criminately whether  the  document  be  in  the  hands  of  a  third  per- 
son or  of  a  party,  and  either  would  be  equally  liable  to  punishment 
for  contempt  for  failure  to  obey.  Dunn  v.  N.  Y.  Edison  Co.,  40 
Misc.  Rep.  602,  92  N.  Y.   Supp.  787. 

C3  Ante,  p.  432,  note  51. 


436  WRITINGS.  (Ch.  14 

a  preliiuin-ii^-  matter  to  be  attended  to  before  the  writing  can 
be  received.  This  is  the  authentication  of  the  writing,  or  the 
proof  of  its  genuineness.^*  With  respect  to  proof  of  this 
kind,  documents  have  been  divided  into  two  classes — those 
which  are  attested,  and  those  which  are  not.  The  common  law 
made  a  difference  in  the  proof  of  the  genuineness  of  the  two 
classes,  requiring  in  the  former  case  proof  of  the  attestation, 
while  in  the  latter  proof  of  the  execution  alone  was  necessary, 
or,  indeed,  possible.®^  In  the  case  of  attested  documents  the 
rule  was  very  strict  that  authentication  must  be  by  putting  on 
the  stand  the  attesting  witnesses,  or  one  of  them.®**  Even  if 
the  party  himself  who  executed  the  instrument  was  present 
in  court,  he  was  not  permitted  to  prove  the  document.®'^ 
Where  there  were  several  witnesses  to  the  same  instrument,  it 
was  held  sufficient  if  one  of  them  was  produced. ^^  By  statu- 
tory provision  a  great  many  instruments  v/hich  at  common 
law  required  attestation  have  been  made  valid  without  attest- 
ing witnesses.  Usage  has,  however,  caused  parties  to  continue 
to  add  the  attestation,  and  a  new  question  has  thereby  been 
raised  as  to  authentication  of  a  document  which  is  not  re- 
quired to  be  attested,  but  which  in  fact  has  been  executed  in 
the  presence  of  attesting  witnesses.  There  seems  to  be  no 
settled  rule  with  respect  to  the  manner  of  proof  under  such 
circumstances.  In  Massachusetts  it  would  seem  that  the  at- 
testation may  be  disregarded,  and  that  the  instrument  may 
be  proved  in  the  ordinary  way.®^ 

64  Stebbins  v.  Duncan,  108  U.  S.  32,  44,  2  Sup.  Ct.  313,  27  L.  Ed. 
641. 

65  2  Tayl.  Ev.  §  1839. 

66  Omychund  v.  Barker,  1  Atk.  21,  49;  Res  v.  Inhabitants  of  Har- 
ringworth,  4  Maule  &  S,  350;  Abbot  v.  Plumbe,  1  Doug.  216;  Brig- 
ham  V.  Palmer,  3  Allen  (Mass.)  4.50;  Ellis  v.  Smith,  10  Ga.  253,  261; 
1  Greenl.  Ev.  §  509.  Some  early  cases  are  referred  to  and  extracts 
printed  in  Thayer,  Gas.  Ev.  (2d  Ed.)  pp.  735-739. 

87  Brigham  v.  Palmer,  3  Allen  (Mass.)  450. 

6  8  White  V.  Wood,  8  Cush.  (Mass.)  413. 

68  Shaw,  C.  J.,  in  Amherst  Bank  v.  Root,  2  Mete.  (Mass.)  522,  at 
page  533,  says,  referring  to  a  document  which  became  material,  and 
was  offered  in  evidence:  "It  being  an  instiniment  not  requiring  at- 
testation to  give  it  le,^■al  effect  as  an  instrument,  it  would  be  suffi- 
cient to  prove  the  fact  of  execution  by  any  competent  evidence." 


§§  280-281)         AUTHENTICATION    OF    DOCUMENTS.  437 


SAME— WHEN    PROOF   BY   ATTESTING    WITNESSES    EX- 
CUSED. 

280.  W^here  attesting  witnesses   cannot  be   produced  for  rea- 

sons wliicli  the  court  regards  as  sufficient,  otter  proof 
vidll  be  alloxtred. 

281.  Their  absence  will  be  considered  satisfactorily  explain-^ 

ed  wben  it  is  shown  that  they  are  all 

(a)  Dead, 7  0   ©r 

(b)  Insane, 71    or 

(c)  W^ithout    the   jurisdiction   of   the   co\irt,7  2   or  that 

(d)  After  diligent  search  they  cannot  be  found,  or  are  un- 

knox7n.7  3 

The  above  are  the  principal  cases  of  disability  on  the  part 
of  attesting  witnesses  upon  proof  of  which  the  courts  hold 
secondary  evidence  admissible.  The  matter  is  one  largely 
of  discretion,  to  be  exercised  upon  the  facts  as  they  may  appear 
in  each  particular  case,  and  there  are  many  other  instances, 
not  included  in  the  above  classes,  where  the  peculiar  circum- 
stances have  induced  the  court  to  permit  secondary  evidence 
of  execution  of  documents.^*  It  is  held  that  the  nonappear- 
ance of  all  of  the  attesting  witnesses,  if  there  are  several,  must 
be  accounted  for  before  any  other  evidence  can  be  introducd." 
As  the  testimony  of  one  of  several  attesting  witnesses  is  sufii- 
cient  to  prove  the  document,  no  other  evidence  can  be  al- 
lowed until  it  is  shown  to  be  impossible  to  produce  any  single 
one.'^*     A  peculiar   question   has   arisen   where   an   attesting 

7  0  AcTam  v.  Kerr,  1  Bos.  &  P.  360;  Stebbins  v.  Duncan,  108  U.  S. 
32,  2  Sup.  Ct.  313,  27  L.  Ed.  641. 

71  Neely  v.  Neely,  17  Pa.  227;  Currie  v.  Child,  3  Camp.  283. 

7  2  Valentine  v.  Piper,  22  Pick.  (Mass.)  85,  90,  33  Am.  Dec.  715: 
Teall  V.  Van  Wyck,  10  Barb.  (N.  Y.)  376;  Jones  v.  Roberts,  65  Me. 
273;  Barnes  v.  Trompowsky,  7  Term  E.  265,  per  Lord  Kenyon,  page 

266. 

7  3  Woodman  v.  Segar,  25  Me.  90.  In  Keeling  v.  Ball,  Peake,  Add. 
Cas.  88,  Lord  Kenyon  admitted  secondary  evidence  where  a  bond 
bad  been  lost,  and  the  party  did  not  remember  who  the  subscribing 
witness  was. 

74  See  1  Greenl.  Ev.  (15th  Ed.)  §  572,  and  notes. 

7  5  Jackson  v.  Gager,  5  Cow.  (N.  Y.)  383,  380. 

7  6  Stebbins  v.  Duncan,  108  U.  S.  32,  45,  2  Sup.  Ct.  313,  27  L.  Ed. 
641. 


4H8  WRITINGS.  (Ch.  14 

witness  has  been  called,  and,  though  admitting  his  signature, 
denies  that  he  saw  the  execution  of  the  instrument.  In  such 
case,  will  the  party  be  precluded  from  introducing  secondary 
evidence  of  the  execution?  It  has  been  held  that  (to  quote 
the  language  of  an  early  case)  "a  man  shall  not  lose  his  obli- 
gation because  they  have  tampered  with  his  witness,  and  he 
allowed  the  plaintiff  to  prove  the  obligation  by  comparison  of 
hands."  " 


SAME— KIND  OF  EVIDENCE  NECESSARY  IN  ABSENCE  OF 
ATTESTING   ^WITNESSES. 

282.  By  the  common  laiv,  if  the  attesting  w^itnesses  could  not 

be  produced,  proof  ^xra,s  rc^iiiired — First,  of  their  hand- 
■writing^.  or  that  of  one  of  them;  and,  second,  of  the 
handwriting  of  the  mslser. 

283.  The    general    Twle   in   the    United    States    at   the    present 

tinje  considers  proof  of  the  handivriting  of  either  the 
maker   or   attesting   ivitness   snliieient. 

Where  the  absence  of  the  attesting  witnesses  has  been  satis- 
factorily explained,  it  then  becomes  a  question  what  other 
evidence  will  be  allowed,  and  how  much  will  be  required  to 
prove  the  execution  of  a  document.  There  seems  to  have  pre- 
vailed a  notion  that  resort  must  first  be  had  to  proof  of  the 
handwriting  of  the  subscribing  witnesses,  or  at  least  one  of 
them,'^^  and,  in  the  event  of  its  being  impossible  to  produce 
such  evidence,  then  to  proof  of  the  execution  by  the  maker. 
This  doctrine  does  not  appear  to  have  been  generally  en- 
forced as  a  strict  rule ;  on  the  contrary,  the  courts  have  rec- 
ognized  indiscriminately  both  kinds  of  proof   as   sufficient.''^ 

V7  Blurton  v.  Toon  (1(J:)G)  Skin.  639;  Reinhart  v.  Miller,  22  Ga. 
402,  416,  68  Am.  Dec.  506. 

78  Gelott  V.  Gooclspeed.  8  Cnsh.  (Mass.)  411;  Van  Rensselaer  v. 
Jones,  2  Barb.  (N.  Y.)  G43.  In  Stebbins  v.  Duncan,  108  U.  S.  32.  2 
Sup.  Ct.  313,  27  L.  Ed.  641,  at  page  44,  108  U.  S.,  and  at  page  321. 
2  Sup.  Ct.  (27  L.  Ed.  641),  the  coiu't  says:  "As  the  witnesses  to 
the  deed  were  shown  to  be  dead,  the  method  pointed  out  by  law  to 
establisli  the  execution  of  the  deed  was  by  proof  of  the  handwrit- 
ing of  the  witnesses  to  the  deed,  and  where  there  was  more  than 
one  witness  proof  of  the  handwriting  of  one  was  sufiicient." 

7  8  In   Gelott   V.   Goodspeed,   8   Gush.    (Mass.)   411.   412,   the  court 


§  285)  AUTHENTICATION    OF    DOCUMENTS.  439 

In  case  of  an  instrument  to  the  validity  of  which  a  subscribing 
witness  is  made  necessary  by  law,  it  would  seem  that  the 
proof  would  have  to  extend  to  proof  of  the  handwriting  of  such 
witness.®" 


SAME— NATURE    OF    PROOF    REQUIRED    FROM    ATTEST- 
ING  W^ITNESSES. 

284.  Authentication  by  an  attestiiig  vi^itness  merely  requires 

tliat  such  Avitness  testify  to  the  genuineness  of  his  sig- 
nature as  a  Tf^itness   to   the  instrument. 

The  testimony  of  an  attesting  witness  is  largely  a  matter 
of  form.  Such  witness  need  not  know  anything  about  the 
instrument  itself.  It  is  sufficient  if  he  identifies  his  signature. 
When  it  is  considered  that  the  fact  to  be  proved  is  not  the 
contents  of  the  document,  but  the  fact  that  it  was  executed 
by  the  maker,  it  will  be  seen  that  the  act  of  attestation  is  in 
itself  evidence  that  the  document  was  in  existence  and  exe- 
cuted. That  the  witness  purporting  to  sign  actually  did  sign 
is  therefore  all  the  evidence  which  is  necessary  to  authenticate 
the  document.®^  Knowledge  of  the  contents  of  the  docu- 
ment on  the  part  of  the  witness  is  immaterial. 

SAME— UNATTESTED    DOCUMENTS. 

285.  'Where  the  document  sought  to  be  proved  is  not  attest- 

ed, the  method  of  proof  is  simply  to  authenticate  the 
handivritiug  of  the  maker. 

If  a  writing  has  no  subscribing  witnesses,  and  is  not  of 
sufficient  age  to  "prove  itself,"  the  signature  of  the   maker 

say:  "We  perceive  no  reason,  assuming  tliat  a  proper  case  for  any 
secondary  evidence  was  shown,  why  the  proof  of  the  handwriting 
of  one  witness  to  the  deed  was  not  quite  sufficient  to  authorize  read- 
ing the  deed  to  the  jury."  In  Troeder  v.  Hyams.  153  Mass.  536, 
539,  27  N.  E.  775,  proof  of  the  signature  of  the  malcer  was  held 
sufficient.  See.  also,  Newsom  \.  Luster,  13  111.  175.  See  opinion 
of  Erie,  J.,  in  Reg.  v.  Inhabitants  of  St.  Giles,  1  El.  &  Bl.  642,  645. 

80  Newsom  v.  Luster,  13  111.  175,  185. 

81  But  see  Schaa'er  v.  Emmons,  103  App.  Div.  399,  92  N.  Y.  Supp. 
993. 


440  WRITINGS.  (Cll.  14 

must  be  proved  as  preliminary  to  its  introduction  in  evidence, 
or,  in  case  of  its  being  a  document  without  signature,  the 
writing  must  be  identified  as  that  of  the  person  with  whom  it 
is  sought  to  connect  the  paper.^^  It  is  not  necessary  to  prove 
the  date  of  the  signing  of  the  instrument,  nor  other  circum- 
stances of  its  execution.  Proof  of  handwriting  is  sufficient 
to  admit  it  in  evidence,^^  though,  of  course,  if  its  genuineness 
is  attacked  by  evidence  tending  to  show  that  it  was  antedated, 
or  otherwise  affected  with  fraud,  the  person  offering  it,  to 
make  it  effective,  would  be  obliged  to  introduce  further  evi- 
dence. 


SAME— EXCEPTIONS  TO  RULE  REQUIRING  PROOF  OF 

EXECUTION. 

28G.  In  tlie  foUo^ng  cases  proof  of  the  execution  of  docu- 
ments   offered  in   evidence   is   not   required: 

(a)    Ancient  doc»iinents;  i.  e.,  of  the  age  of  30  years  or  more. 

Cb)  A  document  under  ivliicli  the  adverse  party  claims  an 
interest. 

(c)  In  some  jurisdictions,  a  document  not  directly  involved 

in  the  issue. 

(d)  When  proof  is  ■waived  by   the   adverse   party. 

There  are  certain  cases  where  documents  have  been  admitted 
in  evidence  without  formal  proof  of  execution,  either  by  at- 
testing witnesses  or  other  evidence.  These  are  exceptions 
to  the  general  rule.  They  will  be  taken  up  in  the  order  enumer- 
ated in  the  statement  above. 

Ancient  Documents. 

The  first  exception  is  that  of  ancient  documents.  It  has 
been  loosely  stated  that  a  deed  or  other  instrument  30  years  or 
more  old,  which  comes  from  a  proper  custody,  "proves  itself." 
If  what  is  meant  is  that  such  document  will  be  treated  for  all 
purposes  as  genuine  without  any  proof  to  support  it,  then  it 
may  be  emphatically  said  that  there  is  no  such  rule.  If  what 
is  meant  is  that  the  paper  will  be  received  in  evidence  for  the 
consideration  of  the  court  or  jury  without  compelling  the  par- 
es i  Greenl.  Ev.  (15th  Ed.)  §  569,  note  1. 
83  Pullen  V.  Hutchinson,  25  Me.  249,  254. 


§  286)  AUTHENTICATION    OF    DOCUMENTS.  441 

ties  to  give  the  usual  formal  proof  of  execution  by  attesting 
witness  or  otherwise,  then  the  statement  finds  a  basis  in  the 
decisions.®^  Because  a  paper  is  received  in  evidence  it  is  not  to 
be  conclusively  regarded  as  genuine.  Other  evidence  may  show 
that  it  is  a  forgery,  or  that  it  was  never  intended  to  become 
operative;  and  the  jury. is  at  liberty  to  determine  upon  all  the 
evidence  to  what  weight  it  is  entitled. ^^  In  this  view  of  the 
matter  there  is  no  reason  why  any  other  proof  should  be  re- 
quired as  a  condition  to  its  admissibility  than  that  the  docu- 
ment came  from  a  proper  custody.  Other  proof  may  be  offered 
after  the  document  is  before  the  court,  and  will  be  either 
confirmatory  of  the  genuineness  of  the  deed  or  against  it. 
Proof  of  possession  or  the  enjoyment  of  any  rights  secured  by 
the  document  belongs  to  this  class  of  evidence,  and,  if  offer- 
ed, is  properly  admitted  for  the  consideration  of  the  jury. 
But  it  is  scarcely  logical  to  make  it  a  condition  to  the  ad- 
mission of  the  document  in  evidence;  and  in  those  cases 
which  have  required  this  order  of  proof  it  will  be  found  that 
the  attention  of  the  judges  has  been  directed  rather  to  the 
final  question  of  genuineness  to  be  passed  upon  by  the  jury 
upon  all  the  evidence,  than  to  the  preliminary  one  to  be  de- 
termined by  the  judge  before  admitting  the  paper."" 


86 


84  Village  of  Oxford  v.  Willoughby,  181  N.  Y.  155,  73  N.  E.  677. 

85  Gardner  v.  Granniss,  57  Ga.  539,  554;  Harlan  v.  Howard,  70 
Ky.  373.  In  this  case,  referring  to  the  rules  admitting  ancient  docu- 
ments without  proof  of  execution,  Judge  Hargis,  for  the  court,  says; 
"But  we  must  be  understood  as  applying  these  rules  solely  to  the  ad- 
missibility of  the  deed  as  evidence,  and  not  to  the  weight  of  the 
evidence  it  affords.  The  strength  and  credibility  of  the  evidence 
belong  to  the  province  of  the  jui-y,  as  they  may,  even  after  the  deed 
shall  be  admitted,  be  convinced  of  its  want  of  genuineness  from 
other  evidence  that  may  come  in  dm-ing  the  progress  of  the  trial." 

80  In  Willson  v.  Betts,  4  Denio  (N.  T.)  201,  213,  Bronson,  C.  J., 
states  the  doctrine  in  reference  to  ancient  deeds  as  follows:  "But 
the  mere  fact  that  the  instrument  has  existed  for  more  than  thirty 
years,  \inaided  by  other  proofs,  cannot  be  enough  to  establish  it  in 
a  court  of  justice.  In  the  ordinary  affairs  of  men  it  is  verj'  often 
assumed  without  proof  that  he  whose  name  has  been  affixed  to  a 
written  instrument  placed  it  there  himself.  But  when  the  signing 
becomes  a  matter  of  legal  controversy,  it  must  be  established  by 
proof.    And  showing  that  the  instrument  is  thirty  years  old  has  no 


442  WRITINGS.  (Ch.  14 

By  proper  custody  is  meant  such  custody  as  one  would 
naturally  expect  to  find  it  in.  There  is  no  one  place,  ordi- 
narily, which  is  proper  as  against  all  others.  It  is  sufficient 
if  the  circumstances  of  the  possession  in  which  the  document 
is  found  are  not  such  as  to  cast  suspicion  upon  it,  hut  are  such 
as  accord  with  an  originally  authentic  execution  of  the  docu- 
ment and  a  proper  subsequent  use  of  it.^' 

The  common-law  rule  was  that,  even  though  an  attesting 
witness  to  an  ancient  document  be  shown  to  be  alive,  he  need 
not  be  called. ^^  The  30-year  period  is  computed  from  the  time 
the  deed  is  offered  in  evidence,  and  not  from  the  commence- 
ment of  the  suit.^^ 

Doctunent  under   Which  Adverse  Party  Claims  an  Interest. 

The  claim  of  an   interest   under  a  document  is  a   distinct 

and  positive  recognition  of  its  authenticity  and  validity,  and 

really  operates  as  a  waiver  of  proof  as  to  these  points.    There 

greater  tendency  to  prove  it  genuine  than  would  the  fact  that  it  had 
existed  for  a  single  day.  The  mere  fact  of  existence,  whether  the  time 
be  long  or  short,  has  no  tendency  whatever,  in  a  legal  point  of  view, 
to  prove  the  due  execution  of  the  instrument.  *  *  *  j^^  img  some- 
times been  loosely  said  that  where  there  are  no  circumstances  of 
suspicion  a  deed  thirty  years  old  proves  itself.  But  there  is  no 
just  foundation,  either  in  principle  or  authority,  for  such  a  dictum. 
*  *  *  When  possession  has  accompanied  the  deed,  or  other  im- 
equivocal  acts  have  been  done  under  it,  then  the  longer  it  has  ex- 
isted the  stronger  is  the  presumption  that  it  is  genuine.  But  if  the 
deed  has  never  been  put  in  use,  and  especially  if  the  right  it  pro- 
fesses to  give  has  been  denied  by  an  adverse  possession,  then  the 
longer  the  deed  has  existed  the  stronger  is  the  presumption  that  it 
is  not  a  genuine  instrument."  Possession  was  held  a  condition  of 
admissibility  in  Ridgeley  v.  Johnson,  11  Barb.  (N.  Y.)  527,  538; 
Homer  v.  Cilley,  14  N.  H.  85,  98.  Contra,  Harlan  v.  Howard,  79 
Ky.  373. 

8  7  1  Greenl.  Ev.  (15th  Ed.)  §  142. 

S8  Doe  V.  Wolley,  8  Barn.  &  C.  22;  Jackson  v.  Blanshan,  3  Johns, 
rx.  Y.)  292,  295,  3  Am.  Dec.  485,  per  Spencer.  J.;  but  in  this  case 
the  ccurt  refused  to  receive  the  document,  which  was  a  will,  as  it 
had  not  been  30  years  since  the  testator's  death,  though  more  than 
30  since  the  execution  of  the  will.  But  see,  to  the  effect  that  the 
attesting  Avitness,  if  alive,  must  be  produced,  even  though  document 
is  more  than  30  years  old,  Tolman  v.  Emerson,  4  Pick.  (Mass.)  160. 

8  9  Gardner  v.  Granniss,  57  Ga.  539,  554. 


§  286)  AUTHENTICATION    OF    DOCUMENTS.  443 

is,  therefore,  in  such  case,  no  occasion  for  requiring  any  proof. 
The  production   of  the  document  is   sufficient.^" 

Writings  Collaterally  in  Issue. 

There  is  another  principle  recognized  in  the  cases  tending 
to  a  relaxation  of  the  strict  rule  requiring  proof  by  subscrib- 
ing witness.  This  is  that  where  the  contract  is  brought  in 
issue  only  collaterally,  and  not  between  parties  claiming  any 
rights  under  it,  its  execution  may  be  proved  by  testimony  of 
the  maker,  without  resorting  first  to  the  subscribing  witness. '^^ 
This  is  analogous  to  the  principle  under  which  the  contents 
of  a  document,  when  the  question  arises  incidentally,  are  per- 
mitted to  be  proved  by  oral  testimony  without  producing  the 
original.^- 

Waiver  by  Adverse  Party. 

A  party  may  waive  his  right  to  have  a  document  proved  in 
the  ordinary  way,  but.  in  order  to  be  taken  advantage  of,  it 
must  be  a  formal  waiver  or  admission  for  the  particular  pur- 
pose.^^  So,  also,  if  the  instrument  is  in  the  possession  o^ 
the  adverse  party,  who  refuses  to  produce  it  on  notice,  he 
cannot  hold  the  other  party  to  proof  of  its  execution  by  sub- 
scribing witnesses.*^*  This  is  analogous  to  the  principle  al- 
so Jackson  V.  Kiiigsley,  17  Johns.  (N.  Y.)  158;  McGregor  v.  Wait. 
10  Gray  (Mass.)  72,  75,  (id  Am.  Dec.  305 ;  Peavce  v.  Hooper,  3  Taunt. 
GO ;    ilcBrnyer  v.  Walker,  122  Ga.  245,  50  S.  E.  95. 

91  Skinner  v.  Brigham,  126  Mass.  132;  Curtis  v.  Belknap.  21  Vt. 
433;  Demonbreuu  v.  Walker,  4  Baxt.  (Tenn.)  199. 
9  2  Ante,  p.  428. 

93  Steph.  Dig.  Ev.  art.  66;  Forsythe  v.  Hardin.  62  111.  206;  Why- 
man  V.  Garth,  8  Exeh.  803.  807:  Fox  v.  Rell.  3  Johns.  (N.  Y.)  477: 
Richmond  &  D.  R.  Co.  v.  Jones.  92  Ala.  21S.  22C>.  9  gouth.  276.  But 
see  Blake  v.  Sawin,  10  Allen  (Mass.)  340,  343,  where  the  admission 
was  held  to  excuse  proof  of  execution,  though  not  made  for  that 
pm^ose.  See.  to  the  effect  that  an  admission  in  conversation  pre- 
vious to  trial  of  the  execution  of  a  promissory  note  is  admissible 
without  proof  of  inability  to  call  subscribing  witnesses.  Hall  v. 
rhelps,  2  Johns.  (N.  Y.)  451.  This  case  was  distinguislied  in  Fox 
V.  Reil,  supra,  on  the  ground  that  a  promissory  note  did  not  require 
a  subscribin-r  witness,  and  therefore  in  reference  to  it  the  rule  could 
be  safely  relaxed. 

9  4  Cooke  v.  Tauswell,  8  Taunt.  450,  4.53. 


444  WRITINGS  (Ch,  14 

ready  referred  to,  that  when  the  door  is  opened  to  secondary 
evidence  there  are  no  degrees  of  such  evidence.®* 


PROOF   OF   HAND^VRITING. 

287.  The    genuineness   of   handxrriting    may  be   proved   in   tlio 

ordinary  way  by  direct  or  circumstantial  evidence.  It 
may  also  be  proved  by  opinion  evidence,  provided  tbe 
ivitness   called   to   give   bis   opinion 

(a)  Has   seen   the  person  ^vhose    handwriting   is   in  question 

write  at  least  once,   or 

(b)  Has  received  Avritten   communications  purporting  to  be 

in  the  handwriting  of  such  person,  and  has  acted  up- 
on them,    or 

(c)  Is   an   expert   on  the   subject   of   handwriting,   and   gives 

his  opinion  from  a  comparison  of  the  document  in 
question  Tvith   an  admittedly   genuine   specimen. 

288.  It  may   also  be   proved   by   the   evidence    Ti^hich   the   jury 

may  get  directly  from  comparison  of  the  disputed 
specimen  -with  an  admittedly  genuine  specimen  virhich 
has   been   introduced  in   evidence. 

In  connection  with  the  proof  of  the  execution  of  docu- 
ments we  have  seen  that  it  becomes  necessary  to  prove  the 
handwriting  of  the  maker,  or  of  the  attesting  witnesses,  or 
both.  In  the  proof  of  matter  of  this  character  there  are  cer- 
tain rules  which  have  grown  up.  These  rules  have  been  re- 
ferred to,  and  some  of  the  authorities  cited,  in  an  earlier  part 
of  this  work.^^  They  are,  however,  more  closely  connected 
with  the  subject  of  documents,  and  have  their  proper  place  in 
the  treatment  of  that  subject.  It  may  be  said,  in  the  first  place, 
that  proof  of  handwriting  may  be  waived  by  the  admission  of 
the  opposing  party  of  its  authenticity.  This  is  not,  strictly 
speaking,  a  form  of  proof  of  handwriting,  but  is  one  method  of 
making  a  document  admissible  where  otherwise  proof  would 
be  required.®^     Proof  of  handwriting  may  consist  of  the  tes- 

»5  Ante,  p.  483  oe  Ante,  p.  249. 

67  In  Nichols  v.  Allen,  112  Mass.  23,  there  was  no  evlflonce  offf-rod 
to  prove  the  making  of  a  note,  except  answers  of  the  defendant  to 
questions  put  to  him.  As  the  original  note  was  not  submitted  to  him, 
his  answers  can  hardly  be  regarded  as  relating  to  proof  of  a  signa- 
ture.   They  were  rather  of  the  nature  of  circumstantial  evidence,  to 


§  289)  PROOF   OF   HANDWRITING.  445 

timony  of  the  writer  himself  or  any  one  who  saw  the  writing 
made ;  may  consist  of  ordinary  circumstantial  evidence,  show- 
ing the  probability  of  the  writing  having  been  made  by  the 
person  purporting  to  have  made  it,  or  of  opinion  evidence  in 
respect  to  the  writing,  and  of  a  comparison  with  admittedly 
genuine  specimens.  With  regard  to  the  testimony  of  the  writer 
himself,  or  of  one  who  saw  the  writing  made,  or  the  ordinary 
circumstantial  evidence  which  may  bear  on  the  question,  noth- 
ing need  be  said,  as  it  in  no  respects  differs  in  its  nature  and 
manner  of  introduction  from  the  evidence  of  other  facts. 
When  we  come,  however,  to  opinion  evidence,  we  have  sev- 
eral rules  which  are  useful  to  bear  in  mind.  These  relate 
to  the  qualification  of  the  person  who  may  give  an  opinion  as 
to  the  handwriting  in  question. 

SAME— BY  ONE  WHO  HAS  SEEN  THE  PERSON  W^RITE. 

289.  One  TPho  lias  seen  the  person  ^vrite  at  another  time  is 
qualified  to  express  an  opinion  as  to  the  authenticity 
of  the  w^riting  in  question. 

It  has  from  very  early  times  been  settled  that  no  great  de- 
gree of  familiarity  with  the  handwriting  is  required  to  render  a 
witness  competent  to  give  an  opinion.  If  he  has  seen  the  person 
write  a  single  time,  it  has  generally  been  held  sufficient.®*  The 
law  is  not  technical  when  it  comes  to  proof  of  handwriting,  and 
allows  any  reasonably  reliable  testimony.  In  fact,  the  genuine- 
ness of  a  document  is  so  largely  determined  by  its  connection 
with  the  circumstances  and  persons  involved  in  the  case  that  it 
may  be  determined  to  a  practical  certainty  without  resort  to 

be  considered  in  connection  with  his  manner  and  the  circumstances 
attending  his  examination.  The  answer  which  the  court  said  was 
"evidence  to  go  to  the  jury"  was:  "I  signed  a  note,  but  whether  it 
was  payable  to  L.  A.  Wilder  or  order  I  am  unable  to  say.  Neither 
can  I  say  it  was  one,  a  copy  whereof  is  annexed  to  the  plaintiff's  dec- 
laration. [I  am  unable  to  say.]  It  was  something  of  that  puiiiort." 
98  A  good  case  upon  the  subject  of  proof  of  handwriting  will  be 
found  in  Keith  v.  Lothrop,  10  Cush.  (Mass.)  453.  See,  also.  Com.  v. 
Nefus.  135  Mass.  533;  Hopkins  v.  Megquire,  35  Me.  78;  Edelen  v. 
Gough.  S  Gill  (Md.)  ST.  00;  State  v.  Gay,  94  N.  C.  814;  Sidney's 
Trial,  9  How.  St.  Tr.  SIS,  854. 


446  WRITINGS.  (Ch,  14 

any  formal  proof.  The  requirements,  therefore,  as  to  evi- 
dence expressly  directed  to  the  handwriting  itself,  are  not 
strict.  One  who  has  seen  a  person  write  a  single  time  is  really 
not  qualified  to  express  an  opinion  of  value  as  evidence  in 
respect  to  the  genuineness  of  a  disputed  specimen  of  the  same 
handwriting.  Yet  as  we  have  seen,  his  testimony  is  generally 
allowed.  In  cases  of  real  contest  as  to  genuineness  it  is  likely 
that  such  testimony  has  very  little  weight  with  the  jury. 
Where  it  is  useful  is  in  supplying  just  enough  evidence  of 
genuineness  in  cases  where  the  handwriting  must  be  proved, 
but  is  not  actively  contested,  to  give  the  necessary  basis  for 
the  jury's  finding.  It  is  in  accordance  with  this  principle  that 
the  courts  have  held  that  an  ability  to  read  and  write  is  not 
absolutely  necessary  to  make  a  person  competent  as  a  witness 
to  handwriting.*^"  Yet  a  certain  degree  of  intelligence  must 
be  shown  to  make  the  testimony  of  any  weight. ^"^^  If  the 
witness  states  he  has  seen  the  person  write,  but  is  unable  to 
say  that  from  such  observation  he  knows  the  handwriting  suffi- 
ciently to  recognize  it,  he  is  not  competent  to  testify. ^**^  With 
respect  to  the  time  when  the  witness  has  seen  the  person  write, 
it  is  not  necessary  that  it  shall  have  been  before  the  time  of 
the  handwriting  in  dispute.  A  person's  handwriting  is  treated 
as  a  uniform  thing,  and  observation  at  one  time  sufficiently 
qualifies  a  witness  to  recognize  a  specimen  made  at  another, 
whether  before  or  after.^*'^  Such  observation,  however,  must 
have  been  prior  to  the  existence  of  the  controversy.^**"  In 
the  case  of  a  signature  made  by  a  witness  who  cannot  write, 
and  who  therefore  merely  affixes  his  mark  in  the  shape  of  a 
cross  to  his  name,  written  by  some  other  person,  it  would  seem 
that  there  was  little  value  in  testimony  based  on  familiarity 

9  9  Foye  V.  Patch.  132  Mass.  10r>. 

100  People  V.  Corey,  148  N.  Y.  47G,  483,  42  N.  E.  10G6. 

101  Nelnis  v.  State,  91  Ala.  97,  9  South.  193.  And  see  Bnraham  v. 
Ayer,  3G  N.  H.  182.  Compare  Pepper  v.  Barnett,  22  Grat,  (Va.)  405, 
where  the  witness  was  permitted  to  give  his  opinion,  though  stating 
"that  he  was  not  familiar  with  the  handwriting  of  the  said  Ann  R. 
Barnett,  never  having  seen  her  write  but  once,  and  then  only  to  make 
her  signature ;  that  he  would  not  be  able,  from  his  knowledge  ol 
her  handwriting,  to  distinguish  it  from  that  of  others." 

102  Keith  V.  Lothrnp,  10  Cush.  (Mass.)  453. 

103  Territory  v.  O'Hare,  1  N.  D.  30,  44  N.  W.  1003. 


447 


§  290)  PROOF   OF   HANDWRITING. 

with  previous  signatures  of  the   same   kind.     Yet  it  is  held 
that  such  testimony  is  admissible.^ °* 


SAME— BY   ONE   FAMrLIAR  WITH  THE  WRITING. 

290.  One  who  tas  received  conxmunications  from  a  person 
whose  handwriting  is  in  question,  in  the  ordinary 
course  of  business,  and  has  acted  on  the  same,  is  com- 
petent to  express  an  opinion. 

The  familiarity  which  a  witness  has  acquired  with  the 
handwriting  of  another  through  business  dealings  with  him, 
which  have  involved  the  frequent  examination  of,  reading  of, 
and  reliance  upon  his  writing,  is  held  sufficient  to  qualify  the 
witness  to  testify  concerning  it.^°^  This  is  in  line  with  the 
principle  upon  which  the  courts  so  often  act  when  they  adopt 
the  business  man's  standard  in  dealing  with  the  proof  of  facts 
which  come  before  them.  One  who  has  had  correspondence 
with  another  upon  which  he  has  relied  in  business  matters,^"*' 
one  who  has  dealt  with  the  notes  or  checks  of  another,  rely'ng 
upon  the  signatures  thereon,  one  who  has  dealt  in  any  regular 
business  manner  with  the  writing  or  signature  of  another,  is 

104  strong's  Ex'rs  v.  Brevrer.  17  Ala.  706,  710. 

105  See  the  authorities  cited  in  note  70,  ante,  p.  250,  and  also  Ham- 
mond V.  Varian,  54  N.  Y.  398;  Rogers  v.  Ritter,  12  Wall.  (U.  S.)  317, 
20  L.  Ed.  417 ;  Clark  v.  Freeman,  25  Pa.  133 ;  Tuttle  v.  Rainey.  98 
N.  C.  513.  4  S.  E.  475 ;  Empire  Manuf  g  Co.  v.  Stuart,  46  Mich.  482, 
484,  note,  9  N.  W.  527 ;  Board  of  Trustees  of  Tp.  13  v.  Misenheimer, 
78  ill.  22.  In  Sidney's  Trial,  9  How.  St.  Tr.  817,  at  page  854,  we  find 
the  court  admitting  testimony  from  a  witness  who  had  received  notes 
with  the  indorsement  of  the  person  whose  handwriting  was  in  dis- 
pute, and  had  paid  them.  The  following  may  be  quoted:  "L.  C.  J.: 
What  say  you,  Mr.  Cooke?  Cooke:  My  lord,  I  did  never  see  Colonel 
Sidney  write,  but  I  have  seen  several  notes  that  have  come  to  m*- 
with  indorsement  of  his  name,  and  we  have  paid  them,  and  it  is  like 
to  this.  L.  C.  J.:  And  you  were  never  called  to  account  for  mis- 
payment?  Cooke:  No.  my  lord."  See,  also,  Tharpe  v.  Gisburne,  2 
Car.  &  P.  21.  In  Cody  v.  Conly,  27  Grat.  (Va.)  313,  a  witness  was 
held  competent  who,  13  years  previous,  had  received  several  orders 
for  the  payment  of  money  purporting  to  be  signed  by  C,  who  was 
at  the  time  digging  a  well  for  him.  and  had  paid  the  orders. 

106  Huber  Mfg.  Co.  v.  Claudel,  71  Kan.  441,  80  Pac.  960. 


448  WRITINGS.  (Ch.  14 

certainly  competent  to  testify  concerning-  the  handwriting  of 
such  other  person.  As  a  business  man,  he  would  have  no  hesi- 
tation in  relying  upon  his  own  familiarity  with  the  hand- 
writing, and  the  courts  have  in  this,  as  in  many  other  in- 
stances, accepted  the  business  man's  standard.  If  the  witness 
has  merely  seen  letters  or  other  writings  meant  for  third  per- 
sons, and  has  not  himself  conducted  the  correspondence,  or 
acted  upon  it  in  a  business  way,  he  will  not  be  competent.^"'' 
It  is  largely  the  element  of  reliance  in  business  matters  upon 
the  genuineness  of  the  writing  that  is  the  ground  of  compe- 
tency. Where  examination  of  genuine  specimens,  either  writ- 
ten in  the  presence  of  the  witness  or  admitted  to  be  genuine  at 
the  time  of  his  observation,  is  made  for  the  purpose  of  the 
witness  afterwards  testifying,  it  does  not  sufficiently  qualify 
him.  Even  if  he  be  an  expert,  he  cannot  thus  familiarize  him- 
self, so  as  to  become  a  competent  witness. ^°^  Of  course,  if 
the  genuine  specimens  which  he  has  examined  be  produced 
in  court,  and  the  witness  be  asked  to  testify  from  a  comparison 
of  them  with  the  specimen  in  dispute,  he  may,  if  otherwise 
qualified  as  an  expert,  give  his  opinion  as  such. 

SAME— BY  THE   OPINIONS  OF  EXPERTS. 

291.  Testimony  of  persons  especially  qualified  by  education 
and  training  to  judge  of  handwriting,  based  on  a  com- 
parison of  tbe  disputed  ivriting  ixritli  admittedly  gen- 
uine specimens,  is  admissible  as   expert  opinion. 

The  testimony  of  experts  in  respect  to  handwriting  has 
been  taken  up  under  the  subject  of  "Opinion  Evidence,"  and 
it  will  be  sufficient  here  to  refer  to  its  discussion  there.  The 
cases  will  be  found  there  cited.^°* 

107  For  an  eaiiy  case,  see  Ferrers  v.  Shirley,  Fitzg.  195;  Niines 
V.  Perry,  113  Mass.  274,  277;  Philadelphia  &  W.  C.  R.  Co.  v.  Hick- 
man, 28  Pa.  318,  328. 

108  The  Fitzwalter  Peerage,  10  Clark  &  F.  193;  Hynes  v.  McDer- 
mott,  82  N.  Y.  41,  37  Am.  Rep.  538;  Reese  v.  Reese,  90  Pa.  89,  35 
Am.  Rep.  G34.    See,  also,  note  2-50,  ante,  p.  71. 

109  Ante,  pp.  249-252,  and  notes  (58-77.  Expert  testimony,  based  on 
comparison  made  by  the  witness  in  court  before  the  .iury,  is  now  ad- 
mitted in  many  states.     In  addition  to  the  cases  cited  in  the  notes  re- 


§  292)  PROOF   OF   HANDWRITING.  449 


SAME— BT   COMPARISON   OF  HANDS   BY  JURY. 

292.  Tlie  jnry  may  base  their  conclusions  as  to  the  genuine- 
ness of  hand^vriting;  upon  comparison  of  tlie  disputed 
Tpriting  w^ith  genuine  specimens  already  in  evidence, 
and  in  some  jurisdictions  genuine  specimens  are  re- 
ceived solely  for  the  purpose   of  such   comparison. 

What  is  known  as  juxtaposition  of  hands  was  not  allowed 
by  the  earlier  common  law/^"  although  there  was  a  rule  that, 
if  a  document  admitted  to  be  genuine  was  already  in  the  case, 
the  jury  would  be  permitted  to  compare  it  with  the  writing  in 
question. ^^^  There  are,  of  course,  objections  to  this  form  of 
proof  in  the  danger  of  choosing  unfair  specimens,  and  in  the 
multiplication  of  the  issues ;  but  in  spite  of  this  it  has  come 
to  be  established  law  in  some  jurisdictions  that  it  will  be  al- 
lowed/^^  though  in  some  jurisdictions  the  authorities  do  not 

ferred  to  above,  see  Koons  v.  State,  36  Ohio  St.  195 ;  Yates  v.  Yates, 
76  N.  C.  142,  149 ;  State  v.  Tompkius,  71  Mo.  613.  But  the  common- 
law  doctrine  still  prevails  in  some.  Kernin  v.  Hill,  37  111.  209 ;  Jones 
V.  State,  60  Ind.  241;  Davis  v.  Fredericks,  3  Mont.  262.  In  New 
York  the  testimony  of  experts  based  on  comparison  is  allowed,  but 
only  in  case  the  genuine  specimens  have  been  introduced  in  evidence 
for  some  other  purpose.  Hynes  v.  McDermott,  82  N.  Y.  41,  49,  37  Am. 
Rep.  538. 

110  See  opinion  of  Lord  Eldon  in  Eagleton  v.  Kingston,  8  Ves.  438, 
473. 

111  Doe  V.  Newton,  5  Adol.  &  E.  514.  In  Griffith  v.  Williams,  1 
Cromp.  &  J.  47,  it  is  said  per  curiam:  "Where  two  documents  are  in 
evidence,  it  is  competent  for  the  court  or  the  jury  to  compare  thein. 
The  rule  as  to  the  comparison  of  haudwritiug  applies  to  witnesses, 
who  can  only  compare  a  writiug  as  to  which  they  are  examined  with 
the  character  of  the  handwriting  impressed  upon  their  own  minds ; 
but  that  rule  does  not  apply  to  the  court  or  jury,  who  may  compare 
the  two  documents  when  they  are  properly  in  evidence." 

112  Lyon  V.  Lyman,  9  Conn.  55,  62;  Haycock  v.  Greup,  57  Pa.  438. 
But  the  specimen  introduced  as  a  standard  of  comparison  must  be 
sufficiently  authenticated  as  a  genuine  specimen.  For  example,  it 
has  been  held  not  sufficient  that  it  has  been  received  in  reply  to  a  let- 
ter written  to  the  party  whose  handwriting  is  in  question,  and  pur- 
ports to  be  written  by  such  party.  McKeone  v.  Barnes,  108  Mass. 
344.  The  indorsement  upon  a  check  drawn  by  the  witness  to  the  or- 
der of  the  person  whose  handwriting  was  in  question  and  returned 
from  the  bank  has  been  held  insufficient  for  purposes  of  comparison. 

m'kelv.ev.(2d  ED.)— 29 


450  WRITINGS.  (Ch.  14 

go  so  far.^^^  Specimens  used  for  comparison  before  the 
jury  must  be  fair  specimens,  not  manufactured  for  the  pur- 
pose of  comparison,  but  taken  from  among  writings  which 
have  been  made  for  other  purposes.^ ^* 

Indirectly,  the  comparison  of  hands  before  the  jury  might 
have  come  about,  even  though  directly  prohibited.  For  in- 
stance, if  a  witness  was  testifying  upon  the  ground  that  he 
had  seen  the  party  write,  he  might  have  been  allowed  to  pro- 
duce the  specimen  of  the  writing  which  he  had  seen,  and  upon 
which  he  based  his  opinion,  in  order  that  the  jury  might  judge 
of  the  value  of  his  opinion.  Or,  again,  a  specimen  of  the  per- 
son's handwriting  might  have  been  offered  a  witness  to  re- 
fresh his  recollection,  and  then,  on  the  ground  that  the  jury 
has  the  right  to  inspect  papers  used  for  this  purpose,  it  might 
have  been  put  before  them.  In  this  way  a  part,  at  least,  of 
what  is  accomplished  when  an  expert  is  examined  would  be 
covered,  namely,  the  getting  of  an  actual  comparison  between 
a  disputed  and  genuine  specimen.  On  the  other  hand,  the 
jury   would  not  have  the   benefit  of   the   explanation   of  the 

Mississippi  Lumber  &  Coal  Co.  v.  Kelly  (S.  D.)  104  N.  W.  26.5.  On 
the  same  line,  see  Van  Sickle  v.  People,  29  Mich.  61,  64.  In  England 
the  common-law  rule  has  been  changed  by  statute  so  far  as  civil 
cases  are  concerned.    17  &  18  Vict.  c.  12.5.  §  27. 

113  Randolph  v.  Loughlin,  48  N.  Y.  4.56;  Tome  v.  Railroad  Co.,  3!) 
Md.  36,  17  Am.  Rep.  540;  Ilazleton  v.  Union  Bank,  32  Wis.  34.  47: 
Bevan  v.  Atlanta  Nat.  Bank,  142  111.  302,  308.  31  N.  E.  679;  Weid- 
man  v.  Symes,  116  Mich.  619,  74  N.  W.  1008.  But  see  Miles  v. 
Loomis,  75  N.  Y.  288,  31  Am,  Rep.  470,  where  it  was  held  that  if  the 
writings  were  in  evidence,  though  introduced  for  other  purposes, 
comparison  could  be  made  by  experts  and  by  the  jury  or  referee. 
And  by  statute  in  New  York  comparison  of  "a  disputed  writing  with 
any  writing  proved  to  the  satisfaction  of  the  court  to  be  genuine" 
has  been  provided  for.    Laws  N.  Y.  1880.  c.  36. 

114  King  v.  Donahue,  110  Mass.  155,  14  Am.  Rep.  580.  But  see 
Singer  Manuf'g  Co.  v.  McFarlaud,  53  Iowa,  .540,  5  N.  W.  739,  where, 
under  statutory  provision  permitting  comparison,  a  signature  made 
during  the  pendency  of  the  action  to  one  of  the  pleadings  was  ad- 
mitted ;  the  court  s-aying:  "It  would  doubtless  have  been  in  better 
taste  for  the  defendant  to  have  introduced  his  writings  made  at  a 
time  and  upon  an  occasion  when  the  motive  to  disguise  was  not  ap- 
parent. This  was  matter  for  the  consideration  of  the  jury,  but  we 
can  find  no  warrant  for  excluding  the  evidence."  To  same  effect. 
Mississippi  Linnber  &  Coal  Co.  v.  Kelly  (S.  D.)  104  N.  V,'.  2;>5. 


§  293)  EVIDENCE    AFFECTING    DOCUMENTS.  451 

similarities  and  differences  which  appear  to  the  practiced  eye 
to  aid  them  in  forming  an  opinion.  It  seems,  therefore,  that 
if  any  actual  comparison  is  to  be  allowed,  it  is  rendered  more 
valuable  by  its  being  accompanied  by  expert  testimony. 

Proof  of  Relationship  by  Resemblance. 

In  connection  with  the  subject  of  proof  of  handwriting  by 
comparison  of  hands,  reference  may  be  made  to  the  proof  of 
relationship  by  resemblance.  In  cases  of  bastardy,  and  often 
also  in  cases  where  heirship  is  involved,  it  becomes  necessary 
to  connect  a  child  with  its  father.  In  these  cases  attempts  have 
been  made,  in  the  absence  of  better  proof,  to  show  resemblance 
or  lack  of  it  between  the  child  and  the  alleged  father.  Two 
classes  of  testimony  have  been  offered, — the  one,  testimony  of 
persons  who  have  seen  the  child  and  its  alleged  father,  and  who, 
from  such  observation,  have  an  opinion  as  to  the  resemblance 
between  them ;  the  other,  the  placing  of  the  child  and  the  al- 
leged father  before  the  jury,  and  allowing  them  to  draw 
their  own  inferences  as  to  resemblance.  The  courts  have  not 
favored  the  former  method,"^  but  have  quite  generally  al- 
lowed the  latter.^ ^^ 


EVIDENCE  AFFECTING  THE   CONTENTS   OF  DOCUMENTS. 

293.  There  is  a  general  rule,  sometimes  spoken  of  as  the  "oral 
evidence  rule,"  TO^hich  declares  evidence,  the  effect  of 
Tvhich  is  to  vary  the  terms  of  a  written  instrument, 
or  to  change,  cut  doivn,  or  alter  the  effect  thereof,  to 
be    inadmissible. 

The  rule  above  stated  finds  its  proper  application  in  cases 
where  the  written  instrument  is  in  the  nature  of  a  contract, 
deed,  or  other  paper,  expressive  of  acts  or  conclusions  done 
or  arrived  at  between  two  or  more  parties. 

There  is  a  group  of  cases  in  connection  with  which  the  rule 

iisYoving  V.  Makepeace,  103  Mass.  50,  54:  Keuiston  v.  Rowe,  Ifi 
Me.  38;  Jones  v.  Jones,  45  Md.  144,  151.  But  see  contra.  State  v. 
Bowles,  52  N.  C.  579. 

116  Scott  V.  Donovan,  153  Mass.  .378.  26  N.  E.  871;  Finnosan  v. 
Dimau.  14  Allen  (Mass.)  197 ;  Gilmanton  v.  Ham.  38  N.  H.  108,  112 ; 
Warlick  v.  White.  70  N.  C.  175 ;    State  v.  Woodruff.  67  N.  C.  89. 


452  WRITINGS.  (Ch.  14 

is  sometimes  cited,  which  do  not  in  fact  present  instances  of 
its  application.  These  are  cases  where  the  writing  itself  is 
the  essential  thing  to  be  dealt  with,  and  not,  as  in  the  case  of 
a  contract,  the  mere  evidence  of  an  understanding.  Such  cases 
are  found  where  judicial  records  and  proceedings,  or  official 
records  and  documents,  are  brought  into  question.  Such  writ- 
ings are  sometimes  found  to  be  defective,  by  reason  of  omis- 
sion of  certain  parts,  or  of  certain  formalities  of  execution. 
In  such  case  parol  evidence  is  hot  admissible  to  make  valid 
what  in  itself  is  invalid  and  ineffective.  Parol  evidence  is  not 
excluded  by  reason  of  the  rule  against  the  varying  of  the  terms 
of  a  written  instrument,  but  for  the  simple  reason  that  the 
writing  itself  is  the  thing  to  be  dealt  with,  and  it  must  be 
dealt  with  in  the  form  in  which  it  is  found,  and  be  held  valid 
or  invalid  accordingly.  It  cannot  be.  changed  into  something 
different  from  what  it  is  by  the  oral  testimony  of  witnesses.  A 
void  judgment  cannot  in  this  way  be  made  valid. ^^^  Nor 
can  an  ineft'ective  assessment  for  taxes  be  made  valid  by  oral 
evidence.^^* 

117  pfeiffer  v.  McCuIlough,  115  111.  App.  251. 

118  Paine  v.  Trust  Co.,  136  Fed.  .527,  69  C.  C.  A.  303.  See,  also. 
Brooks  V.  School  Dist,  73  N.  H,  263,  61  Atl.  127;  Godfrey  v.  Phil- 
lips, 209  111.  584,  71  N.  E.  19;  Chippewa  Bridge  Co.  v.  City  of  Du- 
rand,  122  Wis.  85,  99  N.  W.  603,  106  Am.  St.  Rep.  931;  Town  of 
Wilson  V.  Marliley,  133  N.  C.  616,  45  S.  E.  1023;  Oster  v.  Broe,  161 
Ind.  113,  64  N.  E.  918 ;  Speirs  Fish  Co.  v.  Bobbins,  182  Mass.  128,  65 
N.  E.  25. 

These  cases  must  not  be  confused  with  the  cases  where  the  writing 
is  merely  evidence  of  some  act,  and  where  the  act  and  not  the  writ- 
ing is  in  question.  In  such  cases  parol  evidence  is  generally  received. 
Parol  evidence  has  been  held  admissible  to  show  when  a  document 
was  filed  in  the  clerli's  office,  although  contradicting  the  clerlv's  file 
mark.  It  is,  however,  held  in  some  jurisdictions  that  the  record  of 
the  filing  is  conclusive.  Sweet  v.  Gibson,  123  Mich.  699,  83  N. -W. 
407. 

The  action  of  an  official  board  or  department  may  be  shown  by 
parol  evidence,  although  minutes  of  the  meeting  have  been  kept. 
State  V.  Aldridge,  66  Ohio  St.  598,  64  N.  E.  562 ;  State  v.  Alexander, 
107  Iowa,  177,  77  N.  W.  841. 

But  in  some  jurisdictions  it  is  held  that  official  journals  or  records 
of  proceedings  at  meetings  of  this  character  have  a  formal  and  con- 
clusive character,  and  where  this  is  the  law  parol  evidence  to  contra- 
dict them  is  excluded.     City  of  Dallas  v.  Beeman,  18  Tex.  Civ.  App. 


§  293)  EVIDENCE    AFFECTING    DOCUMENTS.  453 

The  rule  in  its  application  within  its  own  proper  field  of 
writings  is  founded  on  the  idea  that  where  there  is  r  writing 
declaring  or  defining  rights  and  liabilities,  there  the  writing 
will  be  conclusive,  and  that  it  cannot  be  shown  that  the  ar- 
rangement or  agreement  which  the  writing  expresses  is  dif- 
ferent from  the  expression  of  it  contained  in  the  document. 
There  is  a  distinction  between  proving  the  existence  of  a  con- 
tract in  writing  and  proving  matter  which  tends  to  modify  the 
terms  of  a  contract  already  in  evidence.  The  document  itself, 
once  properly  authenticated,  tells  its  own  story ;  but,  if  the 
document  is  not  produced,  its  existence  and  terms  must  be 
proved  by  other  evidence,  and  conflicting  evidence  may  be  in- 
troduced as  to  such  matters,  from  which  the  jury  must  infer 
what  the  terms  of  the  contract  in  fact  were.  Thus,  if  it  is 
necessary  to  prove  the  terms  of  a  written  instrument  by  secon- 
dary evidence  of  an  oral  nature,  there  is  little  opportunity  to 
apply  the  rule  as  to  varying  the  terms  of  a  written  instrument 
by  parol  testimony ;  but  if  the  existence  and  terms  of  the  con- 
tract be  proved  by  the  original  paper,  or  by  accurate  written 
copies,  the  rule  finds  a  ready  application,  and  any  parol  testi- 
mony tending  to  modify  it  is  excluded. 

The  question  whether  this  rule  is,  strictly  speaking,  a  rule 
of  evidence,  or  a  rule  of  substantive  law,  has  been  raised  in 
connection  with  the  cases  which  have  discussed  the  eflfect  of 
oral  evidence  introduced  without  objection.  The  prevailing 
opinion  seems  to  be  that  the  evidence,  if  once  admitted,  may 
be  used  for  all  purposes.^ ^^ 

335,  45  S.  W.  626;    Mullins  v.  Shaw,  77  Miss.  900.  27  South.  602; 
Cowley  V.  School  Dist..  130  Mich.  634.  90  N.  W.  680. 

119  Union  Bank  of  Brooklyn  v.  Case  (Sup.)  84  N.  Y.  Supp.  550; 
Frauenthal  v.  Bridgeman,  50  Ark.  348,  7  S.  W.  388.  In  a  note  upon 
this  question  in  17  Harvard  Law  Rev.  271,  the  view  is  taken  that 
parol  evidence  which  varies  the  terms  of  a  written  contract  "is  re- 
jected because  it  is  irrelevant" ;  that  is,  because  there  is  a  rule  of 
substantive  law  which  holds  parties  to  contracts  in  the  form  in  which 
they  have  been  written  down,  in  spite  of  any  verbal  understandings 
Inconsistent  therewith.  If  this  view  be  correct,  then  the  jury  should 
be  instructed  to  disregard  parol  evidence  of  this  character  which  has 
crept  into  the  record  without  objection. 


454  WRITINGS.  (Cll.  14 


SAME— REASON  FOB  RULE. 

294.  Tlie  mle  is  based  upon  an  assumed  intention  on  the  part 
of  the  contracting  parties,  evidenced  by  the  existence 
of  the  Yvrltten  contract,  to  place  themselves  above  the 
uncertainties  of  oral  testimony,  and  on  a  disinclina- 
tion of  the  courts  to   defeat  this  object. 

When  persons  express  their  agreements  in  writing,  it  is 
for  the  express  purpose  of  getting  rid  of  any  indefiniteness, 
and  to  put  their  ideas  in  such  shape  that  there  can  be  no  mis- 
understanding, which  so  often  occurs  where  reHance  is  placed 
upon  oral  statements.  Written  contracts  presume  deliberation 
upon  the  part  of  the  contracting  parties,  and  it  is  natural  tliat 
they  should  be  treated  with  careful  consideration  by  the 
courts,  and  with  a  disinclination  to  disturb  the  condition  of 
matters  as  embodied  in  them  by  the  act  of  the  parties.^-" 
The  general  rule,  therefore,  precludes  the  introduction  of  tes- 
timony to  show  that  the  parties  meant  other  than  they  have 
said  in  the  writing  itself. ^^^  But  it  sometimes  happens  that 
writings  are  procured  to  be  executed  by  fraud,  or  do  not  con- 
tain all  the  agreements  between  the  parties,  having  been  used 
only  to  cover  certain  matters,  while  others  are  left  to  oral  un- 
derstanding ;  or  there  may  be  other  circumstances  which  make 
it  unjust  to  confine  the  parties  strictly  to  writings  made  be- 
tween them.  In  such  cases  the  courts  have  admitted  oral 
testimony,  not  for  the  purpose  of  varying  the  terms  of  the 
written  instrument  itself,  but  for  the  purpose  of  proving  facts 
which  affect  the  standing  of  the  parties  with  respect  to  the 
writings.    These  cases  are  usually  treated  as  exceptions  to  the 

120  Piatt's  Adm'r  v.  U.  S.,  22  Wall.  (U.  S.)  49G.  506,  22  L.  Ed.  858; 
Rickerson  v.  Insurance  Co.,  149  N.  Y.  307,  314,  43  N.  E.  856 ;  Balti- 
more Permanent  Building  &  Land  Soc.  v.  Smith,  54  Md.  187,  200,  39 
Am.  Rep.  374;  Conant  v.  National  State  Bank,  121  Ind.  323,  22  N. 
E.  250. 

121  An  interesting  application  of  the  rule  is  found  in  the  case  of 
Delaware  Indians  v,  Cherokee  Nation,  193  U.  S.  127,  24  Sup.  Ct.  342, 
48  L.  Ed.  646,  where  it  was  held  that  the  agreement  of  April  8,  1867, 
entered  Into  between  the  Delaware  and  Cherokee  Nations,  was  not 
open  to  explanation  by  parol  evidence  of  the  understanding  of  the 
parties. 


§  295)  EVIDENCE   AFFECTING    DOCUMENTS.  455 

general  rule,  though  not  strictly  such.    A  few  of  them  may  be 
noticed. 


SAME— VALIDITY  Or  INSTRUMENT   QUESTIONED. 

295.  When  a  written  instrnment  is  alleged  to  be  invalid  for 
fraud  in  its  procurement,  or  any  otlier  reason,  oral 
testimony  is  admissible  to  sbow  tlie  circumstances  of 
tbe    execution. 

A  document,  the  execution  of  which  has  been  procured  by 
fraud  or  intimidation,  may  always  be  attacked.  So,  also,  the 
fact  that  it  was  not  duly  executed,  or  that  it  is  wrongly  dated, 
or  was  executed  by  mistake,  may  be  shown.  Anything  affect- 
ing the  validity  of  the  instrument,  whether  it  relates  to  the 
instrunient  itself  or  to  the  parties  purporting  to  have  executed 
it,  may  be  proved  by  parol.^"'  This  is  not  varying  the  terms 
of  the' document  so  much  as  it  is  throwing  Hght  upon  its  char- 

122  1  Greenl.  Ev.  §  284.     In  Pym  v.  Campbell,  6  El.  &  Bl.  370.  A. 
sued  X.  upon  a  contract  for  the  sale  of  certain  goods.     X.  offered 
evidence  to  show  that  the  contract,  though  absolute  on  its  faco.  was 
not  to  be  binding  until  approved  by  B.    This  evidence  was  held  ad- 
missible as  attacking  the  validity  of  the  contract,  and  not  varying  its 
terms.    Kansas  City,  M.  &  B.  R.  Co.  v.  Chiles,  86  Miss.  361,  38  Soiith. 
498;    Commissioners  of  Allegheny  County  v.  Warfleld.  100  Md.  516. 
60  Atl.  590,  108  Am.  St.  Rep.  446.    In  the  latter  case  it  was  sought  to 
compel  the  Governor  to  forward  to  the  clerk  of  the  court  a  statute  al- 
leged to  have  been  passed  and  approved.    Oral  testimony  was  offered 
of  the  Governor  to  the  efEect  that  he  signed  the  bill  by  mistake,  not 
knowing  what  paper  it  was,   and  that  he   immediately   erased  his 
name.    The  testimony  was  objected  to  on  the  ground  that  parol  evi- 
dence could  not  be  received  to  vary  the  writing.    The  testimony  was 
held  to  be  admissible,  as  going  directly  to  the  validity  of  the  instru- 
ment.    See,  also,  Mendenhall  v.  Ulrich,  94  Minn.  100,  101  N.  W.  1057 ; 
Shields  v.  Exploration  Co.,  137  Fed.  539,  70  C.  C.  A.  123. 

Failure  of  consideration  may  always  be  shown,  since  it  touches 
the  validitv  of  the  instrument.  Gaar,  Scott  &  Co.  v.  Hill,  113  Mo. 
\pp  10  87  S.  W.  609;  Wood  v.  Bangs,  2  Peuuewill  (Del.)  48  Atl. 
189 ;  Eckler  v.  Alden,  125  Mich.  215,  84  N.  W.  141 ;  Aldrich  v.  Whit- 
aker  70  N  H.  627,  47  Atl.  .591.  Fraud  may  always  be  shown. 
Machin  v.  Trust  Co..  210  Fa.  253,  59  Atl.  1073 ;  Metzger  v.  Roberts, 
26  Ohio  Cir.  Ct.  R.  675 ;  Mason  v.  Cable  Co.,  71  S.  0.  150,  50  S.  E. 
781  •  Corbett  v.  Joannes.  125  Wis.  370,  104  N.  W.  09 ;  J.  G.  Shaw 
Blank  Book  Co.  v.  Maybell,  86  Minn.  241,  90  N.  W.  302. 


456  WRITINGS.  (Ch.  14 

acter.  It  is  showing  that  legally  there  is  no  such  instrument  in 
existence  as  there  purports  to  be.  It  is,  therefore,  no  exception 
to  the  parol  evidence  rule,  though  loosely  spoken  of  as  such.^ 


23 


SAME— COLLATEBAIi    OBAIi    AGREEMENTS. 

296.  Where  the  writing  covers  only  part  of  the  transactions 
between  the  parties,  and  there  are  oral  agrreements 
relating  to  the  same  subject,  such  agreements  may  be 
shonrn. 

If  it  appears  that  the  parties  did  not  intend  the  writing  to 
embody  all  the  transactions  between  them,  the  rule  is 
that  such  transactions  as  do  not  purport  to  be  covered  by  the 
document,  but  which  supplement  or  complete  it,  may  be 
proved.^ ^*  Here,  again,  there  is  no  varying  of  the  terms  of 
a  written  instrument.  It  is  only  because  it  has  been  sought 
to  stretch  the  rule  to  cover  cases  that  it  never  was  intended 
to  cover  that  we  have  this  apparent  exception  to  it.  Any  oral 
agreement  relating  to  the  document  itself,  and  made  subse- 
quent to  it,  may  be  shown.  Such  an  agreement,  as  only  modi- 
fying, rescinding,  or  in  some  other  way  affecting  the  written 
agreement,  is  thus  admissible.^^^  There  are  some  peculiarities 
in  the  application  of  this  principle.  They  arise  out  of  other 
rules  of  law  not  connected  with  evidence,  which  prevent  the 
introduction  of  that  which,  so  far  as  the  rules  of  evidence  go, 

12^  Southern  Street-Railway  Advertising  Co.  v.  Manufacturing  Co., 
91  Md.  61,  46  Atl.  513. 

i24Davies  v.  Bierce,  114  La.  663,  38  South.  488;  Niles  v.  Sire,  46 
Misc.  Rep.  321,  94  N.  Y.  Supp.  586;  Kneipper  v.  Richards,  26  Ohio 
Cir.  Ct.  R.  245 ;  Bell  v.  Wiltson,  5  Neb.  (Unof .)  486,  98  N.  W.  1049 ; 
Gould  V.  Metal  Co.,  207  111.  172,  69  N.  E.  896 ;  State  v.  Cunningham, 
154  Mo.  161,  55  S.  W.  282.  It  is  sometimes  difficult  to  tell  just  when 
a  written  instrument  is  complete.  Much  depends  upon  the  surround- 
ing circumstances,  and  it  has  been  held  that  the  incompleteness  need 
not  appear  on  its  face.  Chapin  v.  Dobson,  78  N.  Y.  74,  34  Am.  Rep. 
512.  See,  also,  note  on  case  of  A^iolette  v.  Rice,  173  Mass.  82,  53  N. 
E.  144,  in  13  Harvard  Law  Rev.  p.  139. 

125  Coe  V.  Hobby,  72  N.  Y.  141,  147,  28  Am.  Rep.  120;  Kennebec 
Co.  V.  Banking  Co.,  6  Gray  (Mass.)  204 ;  Quigley  v.  De  Haas,  98  Pa. 
292;  Brown  v.  Everhard,  52  Wis.  205,  8  N.  W.  725;  Goss  v.  Lord 
Nugent,  5  Barn.  &  Adol.  65 ;  Vezey  v.  Rashleigh,  73  Law  J.  Ch.  422. 


§  297)  EVIDENCE   AFFECTING   DOCUMENTS.  457 

would  be  admissible.  Thus  it  is  held,  though  the  authorities 
are  conflicting,  that  where  a  contract  is  such  as  the  statute  of 
frauds  requires  to  be  in  writing,  no  collateral  oral  agreement 
will  be  allowed  to  be  shown.^^^  It  is  also  held  that  the  col- 
lateral oral  agreement  must  have  an  independent  considera- 
tion in  order  to  be  admissible.^ -^  As  a  principle  of  the  law 
of  contracts,  it  would  seem  that  no  collateral  agreement  would 
be  of  any  effect  in  modifying  the  original  unless  there  was  a 
consideration  to  support  it,  and  these  decisions  are  therefore 
strictly  logical. 


SAME— WRITING    A    MERE    MEMORANDUM. 

297.  A  writing  wliicli  is  merely  a  memorandum  referring  to 
an  oral  agreement  between  tlie  parties  does  not  pre- 
clude the  parties  from  showing  the  full  contract  as 
orally   agreed  upon. 

If  the  document  is  merely  a  memorandum,  and  it  does  not 
appear  that  it  was  intended  to  contain  all  the  terms  of  the 
agreement  between  the  parties,  parol  evidence  as  to  the  agree- 
ment is  admissible.  The  fact  that  a  writing  exists  does  not 
shut  out  oral  testimony  unless  it  appears  that  the  writing  was 
intended  to  embody  the  terms  of  the  agreement  and  speak  for 
the  parties.^' 


L28 


126  Hill  V.  Blake,  97  N.  Y.  216,  holds  evidence  of  such  subsequent 
oral  contract  inadmissible.  In  Packer  v.  Steward,  34  A''t.  127,  where 
an  oral  contract  was  taken  out  of  the  statute  by  part  performance, 
evidence  of  a  parol  collateral  understanding  was  admitted.  And  see 
Kribs  V.  Jones.  44  Md.  396. 

127  Coe  V.  Hobby,  72  N.  Y.  141,  148,  28  Am.  Rep.  120;  Malone  v. 
Dougherty,  79  Pa.  46,  52.  But  see  Brown  v.  Everhard,  52  Wis.  205, 
8  N.  W.  72.5. 

128  Allen  V.  Pink,  4  Mees.  &  W.  140;   Thomas  v.  Nelson,  69  N.  Y. 

118. 


458  WRITINGS.  (Ch.  14 


SAME— ORAL  EVIDENCE  OF  CUSTOM. 

298.  Where  there  is  a  custom   to  v^hich  the   contract  is  sub- 

ject,  it   may  be  proved  by  parol. 

It  sometimes  happens  that  the  custom  of  a  particular  trade 
is  such  that  contracts  are  made  with  reference  to  it,  and, 
though  not  expressed  therein,  it  is  understood  to  be  always 
observed,  and  binding  upon  the  parties.  If,  in  such  case,  it 
becomes  material  to  show  the  existence  of  the  custom  as  a 
part  of  the  contract,  it  may  be  done  by  parol  evidence.^^® 
So,  also,  the  language  used  may  contain  terms  which,  by 
custom  in  the  locality  where  the  instrument  is  executed,  have 
a  certain  meaning.  Such  meaning  may  be  proved  by  parol 
evidence.^^" 

But,  where  the  language  of  the  contract  is  plain,  it  has 
been  generally  held  that  evidence  of  a  custom  or  usage  con- 
tradicting such  language  is  inadmissible.^^^ 

SAME— WRITING   BROUGHT   IN   ISSUE   COLLATERALLY. 

299.  Oral  evidence  is  admissible  to  shovir  negotiations,  prom- 

ises, agreements,  and  other  transactions,  although  em- 
bodied in  ^vritten  conti'acts,  provided  the  contract  it- 
self is  not  the  basis  of  the  action. 

The  relations  between  two  persons  who  have  contracted  in 
writing  may  be  brought  in  issue  collaterally  in  a  suit  between 
others.  In  such  case  the  parol  evidence  rule  does  not  apply. 
The  facts  may  be  proved  as  they  exist,  regardless  of  the  oral 
evidence  varying  the  terms  of  any  writing  between  the  par- 

120  Page  V.  Cole,  120  Mass.  37;  Newhall  v.  Appleton,  114  N.  Y.  140, 
21  N.  E.  105,  3  L.  R.  A.  859. 

130  Myers  v.  Sari,  3  El.  &  El.  306;  Rochester  German  Ins.  Co.  v. 
Peaslee  Gaulbert  Co.,  27  Ky.  Law  Rep.  1155,  87  S.  W.  1115,  1  L.  R. 
A.  (N.  S.)  364. 

131  Burton  v.  Oil  Co.,  204  Pa.  349,  54  Atl.  266;  Chilberg  v.  Lyng, 
128  Fed.  899,  63  C.  C.  A.  451 ;  Withers  v.  Moore  (Cal.)  71  Pac.  097 ; 
Deacon  v.  Mattison,  11  N.  D.  190.  91  N.  AV.  35;  Menage  v.  Rosenthal, 
175  Mass.  358,  56  N.  E.  579;  Shores  Lumber  Co.  v.  Stitt,  102  Wis. 
450,  78  N,  W.  562. 


§  300)  EVIDENCE   AFFECTING    DOCUMENTS.  459 

ties.^^^  The  rule  is  one  enforced  for  the  benefit  of  parties 
who  have  agreed  upon  written  expression  of  their  relations, 
and  the  reason  for  its  apphcation  ceases  when  the  rights  of 
others  are  involved  who  have  neither  made  the  writing  nor 
claim  anything  under  it. 


SAME— EVIDENCE   AS   TO  ALTERATIONS. 

300.  Evidence  may  be  offered  vrith  respect  to  alterations  ap- 
pearing on  the  face  of  written  instruments  in  ei:iil-i- 
nation  of  such  apparent  alterations.  Such  evidence 
does  not  vary  the  terms  of  the  instrument,  but  mere- 
ly  shows  ivhat  it  is. 

Where,  on  the  face  of  a  writing,  there  appear  alterations 
by  erasure  or  interlineation,  evidence  is  admissible  to  show  the 
time  at  which,  and  circumstances  under  v.hich,  such  alterations 
were  made.  This  is  for  the  purpose  of  showing  the  terms  of 
the  writing,  and  how  it  is  to  be  considered  legally.^ ^^  There 
is  a  great  deal  said  in  the  cases  with  respect  to  alterations  in 
documents,  and  the  various  so-called  presumptions  in  respect 
to  them,  A  distinction  is  made  between  different  sorts  of  docu- 
ments.    It  is  often  said  that  in  deeds,  if  alterations  appear, 

132  1  Greenl.  Ev.  §  279;  McMaster  v.  President,  etc.,  of  Insurance 
Co.  of  North  America.  55  N.  Y.  222,  14  Am.  Rep.  239;  Burnliam  v. 
Dorr.  72  Me.  198;  Burns  v.  Thompson,  91  Ind.  146.  But  see  Taft  v. 
Little,  178  N.  Y.  127,  70  N.  E.  211,  commenting  on  this  case.  A  note 
In  17  Harvard  Law  Rev.  oGO.  proposes  a  modification  of  the  rule  as 
stated  in  the  text,  expressed  as  follows:  "Where  the  facts  desired  to 
be  proved  can  easily  be  established  without  the  document,  its  produc- 
tion may  be  dispensed  with.  Where,  on  the  other  hand,  proof  with- 
out the  document  would  be  difficult  and  unsatisfactory,  the  court 
will  reaiiire  it  in  evidence." 

133  Gilmor's  Estate.  154  Pa.  523,  529,  26  Atl.  614,  35  Am.  St.  Rep. 
855.  Where  an  alteration  of  an  instrument  in  a  niatm-ial  pnrt  is 
shown  to  have  been  made,  it  was  the  old  common-law  doctrine  that 
the  instrument  was  void,  even  though  it  were  shown  that  the  altera- 
tion was  accidental.  Davidson  v.  Cooper,  11  Mees.  &  W.  778.  This 
doctrine  is  criticised  by  Taylor  (2  Tayl.  Ev.  §  1829),  and  it  is  not  the 
American  rule,  U.  S.  v.  Spalding.  2  INIasou  (U.  S.)  482,  Fed.  Cas.  No. 
16,365.  Where  the  alteration  is  in  an  immaterial  part  of  the  instru- 
ment, it  does  not  affect  its  validity,  Aldous  v.  Cornwell.  L.  R.  3  Q. 
B,  573.     But  see  Jones  v,  Crowley,  57  N.  J,  Law,  222,  30  Atl.  871. 


460  viMTiNGS.  (Cb.  14 

it  will  be  presumed  that  the  alterations  were  made  before  the 
execution  of  the  deed/^*  while  in  wills  it  will  be  presumed  that 
the  alterations  were  made  afterwards.^ ^^  This  is  one  of  the 
cases  of  spurious  presumptions  already  referred  to.^^®  If 
the  matter  be  considered  on  principle,  and  in  the  light  of  the 
real  nature  of  the  bulk  of  the  decisions,  it  will  be  found  that 
there  is  no  presumption  with  respect  to  the  matter  at  all  in 
the  sense  that  there  is  any  eiTect  on  the  proof.^^^  If  the  party 
producing  the  instrument  bases  his  case  on  the  fact  that  the 
alterations  were  made  before  execution,  he  must  introduce 
evidence  to  that  effect.  If,  on  the  contrary,  he  relies  on  the 
document  in  its  original  form,  he  must  show  that  the  altera- 
tions were  made  after  the  execution.^ ^*  If  there  is  no  evi- 
dence at  all  in  respect  to  the  alteration,  the  document  is  not 
proved,  either  in  its  original  or  altered  shape,  and  therefore 
the  party  relying  on  it  must  lose  his  case.^^^     It  is  seldom^ 

134  In  Doe  V.  Catomore,  36  Q.  B.  745,  Lord  Campbell,  C.  J.,  says: 
"In  Co.  Litt.  225b,  it  is  said  that  'of  ancient  time,  if  the  deed  ap- 
peared to  be  rased  or  interlined  in  places  material,  the  judges  ad- 
judged upon  their  view  the  deed  to  be  void.  But  of  latter  time  the 
judges  have  left  that  to  the  jurors  to  try  whether  the  rasing  or  in- 
terlinhig  were  before  the  delivery.*  In  a  note  (1)  [136]  upon  this 
passage  in  Hargrave  and  Butler's  Edition  of  Coke  upon  Littleton,  it 
is  laid  down:  'Tis  to  be  presumed  that  an  interlining,  if  the  contrary 
is  not  proved,  was  made  at  the  time  of  making  the  deed.'  This  doc- 
trine seems  to  us  to  rest  upon  principle.  A  deed  cannot  be  altered, 
after  it  is  executed,  without  fraud  or  wrong,  and  the  presumption  is 
against  fraud  or  wrong,  A  testator  may  alter  his  will  without  fraud 
or  wrong  after  it  has  been  executed,  and  there  is  no  ground  for  any 
presumption  that  the  alteration  was  before  the  will  was  executed." 

i35Steph.  Dig.  Ev.  art.  89;  Cooper  v.  Bockett,  4  Notes  Cas.  685. 

i36Aaite,  p.  99. 

137  Ely  V.  Ely,  6  Gray  (Mass.)  439;  Lilly  v.  Person,  168  Pa.  219, 
232.  32  Atl.  23 ;  Eherenkrook  v.  Webber,  100  Mich.  314,  58  N.  W.  665, 
and  69  N.  W.  761 ;  Milliken  v.  Marlin,  66  111.  13,  20 ;  Hagan  v.  In- 
surance Co.,  81  Iowa,  321,  330,  46  N.  W.  1114,  25  Am.  St.  Rep.  493. 
Compare  with  this  case,  Shroeder  v.  Webster,  88  Iowa,  627,  55  N. 
W.  569 ;   Johnson  v.  Duke  of  Marlborough,  2  Starkie,  313. 

138  See  opinion  of  Vice  Chancellor  Sir  W.  Page  Wood  in  Williams 
V.  Ashton,  1  Johns.  &  H.  115,  118. 

139  In  New  Hampshire,  after  full  consideration,  the  courts  have 
laid  down  the  rule  that  if  there  is  an  "entire  absence  of  evidence  and 
of  circumstances,  both  in  the  instrument  and  in  the  evidence  aliunde, 
from  which  an  inference  can  be  legitimately  drawn  as  to  the  time 


§  300)  EVIDENCE   AFFECTING    DOCUMENTS.  461 

however,  that  there  is  not  some  evidence  in  the  document  it- 
self; evidence  from  the  manner  in  which  the  alteration  is 
made,  and  which  may  be  sufficient  to  satisfactorily  explain 
it.  Such  evidence,  known  as  intrinsic  or  internal  evidence, 
may  be  sufficient  to  justify  a  finding  as  to  whether  the  altera- 
tions were  made  before  or  after  execution.^*" 

when  it  was  actually  made,  tbeu  the  presumption  arises  that  the 
alteration  was  made  after  the  execution  of  the  instrument."  Opinion 
of  Sargent,  J.,  in  Cole  v.  Hills,  44  N.  H.  227,  235.  And  to  the  same 
effect  is  Hills  v.  Barnes,  11  N.  H.  395.  But  does  this  mean  any  more 
than  that  the  party  relying  on  the  instrument  must  prove  it?  If 
there  is  an  absence  of  all  evidence  (and  by  this  the  court  means  ab- 
sence of  any  indications  in  the  paper  itself  from  which  an  inference 
can  be  drawn),  the  person  relying  on  the  instrument  has  not  proved 
it,  and  as  a  matter  of  course  the  case  must  go  against  him  without 
calling  in  the  aid  of  any  presumption.  See  Hayden  v.  Goodnow,  39 
Conn.  164,  where  it  is  held  that  "the  burden  of  proof  of  accounting 
for  an  erasure  or  alteration  is  not  necessarily  on  the  party  producing 
the  instrument.  *  *  *  Each  case  must  depend  on  its  own  circum- 
stances, and  the  triors  must  be  satisfied  that  the  erasure  or  altera- 
tion was  fairly  made,  so  as  not  to  affect  the  validity  of  the  instru- 
ment." The  court  here  perhaps  lost  sight  of  the  fact  that  the  bur- 
den of  proof  may  be  temporarily  satisfied,  and  the  burden  of  pro- 
ceeding consequently  shifted,  by  the  intrinsic  evidence  appearing  on 
the  face  of  the  instrument  itself. 

140  "Here,  from  all  the  circumstances,  it  was  at  least  for  the  sur- 
rogate to  determine  whether  this  interlineation  was  made  before 
or  after  execution,  and  in  malcing  that  determination  he  was  bound 
to  consider  the  handwriting,  the  color  of  the  ink,  the  manner  of 
the  interlineation,  the  fact  that  it  was  noted  at  the  bottom  of  the 
instrument,  and  that  it  was  made  to  correspond  with  the  other  dupli- 
cate. Where  an  interlineation  or  erasure  in  a  will  is  fair  upon  its 
face,  and  it  is  entirely  unexplained,  there  being  no  circumstance 
whatever  to  cast  suspicion  upon  it,  it  would  not  be  proper  for  any 
court  to  hold  that  the  alteration  was  made  after  execution;  but,  if 
there  are  any  suspicious  or  doubtful  circumstances  growing  out  of 
the  mode  of  the  alteration,  the  ink  in  which  it  was  made,  the  fact 
that  it  was  in  favor  of  the  party  holding  the  instrument,  and  that 
it  is  not  noted  at  the  bottom,  then  these  and  all  the  other  circum- 
stances must  be  submitted  as  questions  of  fact  to  be  determined  by 
the  court  in  deciding  whether  the  alterations  were  made  before  ex- 
ecution or  not."  From  opinion  of  Earl,  J.,  in  Crossman  v.  Grossman, 
95  N.  Y.  145,  153.  See,  also,  Ely  v.  Ely,  6  Gray  (Mass.)  439;  Cole  v. 
Hills,  44  N.  H.  227,  2.34 ;  Comstock  v.  Smith,  20  Mich.  30G,  312 ;  In  re 
Goods  of  Cadge,  L.  R.  1  Prob.  &  Div.  543. 


462  WRITINGS.  (Ch.  14 


SAME— INTERPRETATION    OF    DOCUMENTS. 

301.  In  certain  cases  where  the  language  or  subject  of  a  writ- 
ten instrument  requires  explanation  to  make  its  mean- 
ing or  application  clear,  oral  evidence  w^ill  be  allovred. 

Technical  Language — Signs  and  Abbreviations. 

It  may  be  that  in  the  reading  of  a  document  the  language 
or  expressions  used  are  such  as  to  leave  it  doubtful  exactly 
what  is  meant.  In  such  case  it  is  allowable  to  introduce  evi- 
dence to  throw  light  on  the  meaning  of  the  parties.  If,  for 
instance,  the  language  used  is  technical,  and  there  are  signs  or 
abbreviations  employed,  they  may  be  explained. ^*^ 

Sub jcct-M after  Obscure. 

Testimony  as  to  the  nature  of  the  subject-matter  referred 
to  in  a  document,  so  as  to  enlighten  the  court  in  respect  to  it, 
may  be  given.  It  very  frequently  happens  that  the  language  of 
a  contract  leaves  it  uncertain  to  just  what  the  parties  referred, 
and  it  is  impossible  for  the,  court  to  enforce  its  provisions,  or 
to  compute  damages  under  it,  without  some  explanation.  In 
such  cases  resort  to  testimony  of  oral  statements  and  con- 
versations must  be  had.^*^  Such  facts  are  referred  to  by 
Stephen  as  "the  circumstances  of  the  case."  ^*^ 

141  Thus,  in  Quigley  v.  De  Haas,  98  Pa.  292,  the  contract  provided 
that  certain  dams  were  to  be  built  "in  a  good  and  substantial  man- 
ner, as  flood  dams  should  be  built  in  such  streams,  cribbed,  sparred, 
puddled-ditched,  calked,  and  graveled."  Oral  evidence  was  admitted 
as  to  the  understanding  of  the  parties  as  to  the  meaning  of  this.  The 
court  says  (page  299) :  "To  us  it  seems  obvious  that,  in  order  to  make 
this  intelligible  to  a  jury,  some  explanation  was  necessary,  either 
from  experts  or  from  the  understanding  of  the  parties  expressed  at 
the  time  of  the  making  of  the  contract ;  but  of  these  two  methods  of 
arriving  at  the  meaning  of  this  agi'eement  the  latter  was  the  better, 
as  being  the  interpretation  given  to  it  by  those  most  interested ; 
hence  the  one  which  would  be  most  likely  to  express  their  inten- 
tion." See.  also,  Kell  v.  Charmer,  2.3  Beav.  195;  Gardiner  v.  McDon- 
ogh,  147  Cal.  313,  81  Pac.  964;  Morrison  Mfg.  Co.  v.  Bryson,  129 
Iowa,  64.5,  108  N.  W.  1016. 

142  In  Keller  v.  Webb,  126  Mass.  .393,  A.  sued  X.  for  damages  on  a 
contract  to  purchase  600  casks  of   black   lead  at   a   price   per  100 

143  Steph.  Dig.  Ev.  art.  91. 


§  301)  EVIDENCE   AFFECTING    DOCUMENTS.  463 

Language  Uncertain  and  Indefiriitc. 

It  is  clearly  settled  that,  if  a  document  is  unintelligible,  no 
evidence  can  be  given  to  show  what  was  intended.  If  the 
parties  have  endeavored  to  express  themselves  in  writing,  and 
have  failed  to  convey  a  sensible  meaning,  the  law  will  not  at- 
tempt to  construct  for  them,  upon  evidence  of  their  intention, 
a  sensible  document.^** 

Latent  Ambigtiity. 

If  there  is,  however,  a  real  ambiguity  in  the  fact  that  the 
language  of  the  instrument,  though  clear,  appears  to  be  appli- 
cable to  two  persons  or  things,  then  it  is  permissible  to  show 
by  parol  evidence  what  was  meant  by  the  person  who  executed 
j^_i45  'j^i-,ig  is  the  case  of  the  so-called  "latent  ambiguity"  ; 
i.  e.,  the  ambiguity  does  not  appear  upon  the  surface  of  the 
document,  but  is  only  brought  out  where  inquiry  is  made  as. 
to  its  application.  In  one  case  a  testator  devised  property  to 
the  "American  Tract  Society,"  and  when  it  came  to  carrying 
out  the  provisions  of  the  will  the  executor  did  not  know  to 
whom  the  property  should  be  given,  as  it  appeared  there  were 
two  corporations  of  that  name.  Parol  evidence  was  allowed 
to  show  which  one  the  testator  intended  to  be  his  beneficiary."'' 

pounds.  It  was  shown  that  there  was  no  settled  meaning  in  the 
trade  of  the  word  "cask,"  and  that  lead  was  sold  in  casks  of  different 
sizes.  Testimony  of  oral  statements  between  the  parties,  showing 
that  they  agreed  that  the  casks  should  contain  600  pounds  each,  was 
held  proper.  See,  also,  Scott  v.  Neeves.  77  Wis.  30."..  311,  4-5  N.  W. 
421 ;    Carney  v.  Hennessey.  77  Conn.  577,  60  Atl,  120. 

144  1  Greenl,  Ev.  §  300;  Palmer  v.  Albee,  50  Iowa,  429;  Blair  v. 
Security  Bank.  103  Va.  762,  50  S.  E.  2(^.2. 

i4  5Mayberry  v.  Beck,  71  Kan.  009.  81  Pac.  191;  Cappel  v.  Weir, 
46  Misc.  Rep.  441,  92  N.  Y.  Supp.  365 ;  Hebb  v.  Welch.  185  Mass.  335, 
70  N.  E.  440. 

146  Bodman  v.  American  Tract  Soc,  9  Allen  (Mass.)  447.  And  see, 
also,  Hinckley  v.  Thatcher,  1.39  Mass.  477,  1  N.  E.  840,  52  Am.  Rep. 
719 ;  Doe  v.  Needs,  2  Mees.  &  W.  129 ;  Morgan  v.  Burrows,  45  Wis. 
211,  30  Am.  Rep.  717;  Tilton  v.  American  Bible  Soc.  60  N.  H.  377, 
49  Am.  Rep.  321.  Where  X.  contracted  to  deliver  to  A.  00  tons  of 
"ware"  potatoes,  and  by  the  evidenfe  it  a]ipe;ired  that  "ware"  was 
a  term  used  to  designate  the  best  grade  of  potatoes  without  regard 
to  variety,  It  was  held  there  was  no  latent  ambiguity  which  would 
make  evidence  admissible  to  show  that  the  parties  intended  "ware" 
potatoes  of  "Rogers"  variety.     Smith  v.  Jeftryes,  15  Mees,  &  W.  5G1. 


464  WRITINGS.  (Cb.  14 

In  the  case  of  an  ambiguity  of  this  class,  if  the  extrinsic  evi- 
dence which  has  shown  it  to  exist  cannot  be  carried  to  the 
extent  of  showing  with  reasonable  certainty  what  was  intended, 
the  language  can  be  given  no  effect  at  all.^*^  In  cases  of  this 
sort,  since  the  fact  in  issue  to  which  evidence  is  adduced  is  the 
intention  of  the  testator  or  party  who  used  the  ambiguous 
language,  his  declarations  and  statements  showing  v/hat  was 
in  his  mind  are  admissible.^ *^  Where  the  language  accurately 
describes  only  one  object  or  person,  and  is  not  equally  ap- 
plicable to  the  other,  no  extrinsic  evidence  can  be  introduced 
to  show  that  the  latter  was  meant.^*® 


RECEIPTS. 

302.  A  receipt,  being  the  statement  in  •writing  of  a  single 
party,  lias  never  been  held  to  be  within  the  rule;  and 
oral  evidence  is  always  admissible  to  contradict,  ex- 
plain, or  modify  such  a  ^vriting. 

A  receipt  or  release  has  never  been  regarded  in  the  same 
light,  with  respect  to  the  integrity  of  its  contents,  as  a  con- 

147  Thus,  where  the  testator  bequeathed  property,  to  "my  niece 
Mary  Frances  Tyrwhitt  Drake,"  and  it  appeared  that  he  had  no 
niece  by  that  name,  but  did  have  a  sister-in-law ;  that  he  also  had  a 
niece  Frances  Isabella  Tyrwhitt  Drake ;  that  he  had  sentiments  of 
regard  and  affection  for  both, — it  was  held  that  the  ambiguity  was 
not  explained,  and  the  language  was  ineffective.  Drake  v.  Drake,  8 
H.  L.  Cas.  172. 

148  Doe  V.  Hiscocks,  5  Mees.  &  W.  363,  opinion  of  Lord  Abinger, 
page  3GS. 

149  Charter  v.  Charter.  L.  R.  7  H.  L.  364;  Tucker  v.  Seaman's  Aid 
Soc,  7  Mete.  (Mass.)  ISS,  206;  Kurtz  v.  Hibner,  55  111.  514,  8  Am. 
Rep.  665.  But  see  Patch  v.  White,  137  U.  S.  210,  6  Sup.  Ct  617,  710, 
29  L.  Ed.  860 ;  Riggs  v.  Myers,  20  Mo.  239 ;  In  re  Root's  Estate,  187 
Pa.  lis,  40  Atl.  818.  In  this  last  case  the  testator  bequeathed  "unto 
my  nephew,  William  Root,  one  thousand  dollars."  It  appeared  that 
the  testator  had  a  nephew,  William  Root,  and  that  testator's  wife 
also  had  a  nephew  named  William  Root.  The  court  held  the  evi- 
dence inadmissible,  on  the  ground  that  the  words  "my  nephew"  could 
have  only  one  meaning,  yet  the  testator  himself  used  the  words  in 
other  cases  of  bequests  as  describing  nephews  of  his  wife,  and  it 
Avould  seem,  therefore,  that  the  words  were  open  to  explanation  upon 
the  inquiry  as  to  what  the  testator  meant. 


§  302)  RECEIPTS.  465 

tract.  Receipts,  being  the  acts  of  single  parties,  and  not  being 
la  themselves  expressive  of  the  views  of  the  other  parties  to 
the  transaction,  except  so  far  as  deHvery  and  acceptance  may 
imply  acquiescence  in  their  terms,  have  been  pecuHarly  hable 
to  misuse.  On  this  account  the  courts  have  held  that  they  may 
always  be  explained  by  the  introduction  of  all  the  testimony 
as  to  the  facts  to  which  they  relate.^ ^*' 

But  it  has  been  held  that  a  warehouse  receipt  given  for 
grain  is  in  the  nature  of  a  bill  of  lading  or  contract,  and  that 
it  cannot  be  varied  by  parol  evidence.^ ^^ 

150  Fitzgerald  v.  Coleman,  114  111.  App.  25;  Devencenz!  v.  Cassel- 
nelll,  28  Nev.  222,  SI  Pac.  41 ;  Lyun  v.  Beam,  141  Ala.  23G,  37  South. 
515;  Seeger  v.  Boiler  Works,  120  Wis.  11,  97  N.  W.  485;  Komp  v. 
Raymond,  175  N.  Y.  102,  67  N.  E.  113 ;  Tniworthy  v.  French,  97  Me. 
143,  53  Atl.  1005 ;  Ireland  v.  Spiokard,  95  Mo.  App.  53,  68  S.  W.  748 ; 
Robison  v.  Wolf,  27  Ind.  App.  683,  62  N.  B.  74.  Upon  the  same  the- 
ory it  has  been  held  that  a  railroad  ticket  will  not  be  conclusive  as 
to  the  obligation  between  the  carrier  and  the  passenger.  Pennsylva- 
nia Co.  V.  Loftis,  72  Ohio  St.  288,  300,  74  N.  E.  179,  182,  106  Am.  St. 
Rep.  597. 

151  Thompson  v.  Thompson,  78  Minn.  379,  81  N.  W.  543.  For  a 
criticism  on  this  case,  see  13  Harvard  Law  Rev.  681. 

m'kelv.ev.(2d  ED.)— 30 


■466  DEMURRERS   TO   EVIDENCE.  (Ch.  15 

CHAPTER  XV. 
DEMURRERS   TO   EVIDENCE. 

303.  Definition. 

304.  When  Joinder  Compelled. 

305-306.     Final   Form — Every   Inference  Deemed   Admitted. 
307.     Admissibility  of  Evidence  Not  Determined. 

DEFINITION— JOINDER   NOT    COMPELLED   ORIGINALLY. 

303.  In  its  original  form,  the  demurrer  to  evidence  seems  to 
have  been  a  means  by  w^hich,  at  tlie  instance  of  either 
party,  the  determination  of  a  case  could  be  transfer- 
red from  the  jury  to  the  court,  both  as  to  facts  and 
law,  provided  the  other  party  joined  in  the  demurrer. 

The  subject  of  the  demurrer  to  evidence  is  one  about  which 
there  has  been  considerable  misconception.  The  practice  as 
to  its  use  has  not  been  well  defined  and  certain;  and,  while 
it  is  mentioned  in  the  cases  quite  frequently,  we  find  little 
about  it  in  the  text-books.^  It  was  never  a  necessary  nor 
even  a  very  useful  piece  of  legal  procedure,  and,  in  its  final 
shape,  became  so  dangerous  that  its  use  was  practically  aban- 
doned. It  seems  to  be  clear  that  at  one  time  this  form  of  de- 
murrer was  favorably  regarded  by  the  courts,  as  a  method 
by  which  either  party  could  withdraw  from  the  consideration 
of  the  jury  the  evidence  submitted,  and  have  its  effect  de- 
termined by  the  court,  both  in  respect  to  the  inferences  of  fact 
to  be  drawn  from  it  and  to  its  sufficiency  in  law.^ 

1  Stephen,  Greenleaf,  Taylor,  and  Best  do  not  refer  to  the  subject 
at  all;  while  Underbill  (Ev.  par.  372),  apparently  entirely  miscon- 
ceives the  character  of  such  a  demurrer. 

2  Prior  of  Tikeford  v.  Prior  of  Caldwel  (14."G)  Y.  B.  34  Hen.  VI. 
p.  36,  pi.  7.  The  plaintiff  brought  an  action  for  rent  against  the 
defendant,  and  sought  to  establish  his  right  by  prescription.  He 
showed  in  evidence  a  deed  whereby  a  former  Prior  of  Caldwel  grant- 
ed an  annual  rent  of  20  shillings  to  the  plaintiff's  predecessor,  which 
deed  bore  the  date  1242.  The  defendant  sought  to  demur  to  the 
evidence,  saying:     "And  so  we  ask  that  you  will  record  the  evidence,. 


§  304)  WHEN   JOINDER   COMPELLED.  4G7 


WHEN    JOINDER    COMPELLED. 

304.  The  courts  originally  held  that  joinder  in  demurrer 
ivould  not  be  compelled,  but  later  the  rule  \eas  laid 
doivn  that,  ivhere  the  evidence  Avas  definite  and  cer- 
tain, joinder  ^vonld  be  compelled. 

Under  the  early  theory  of  the  demurrer,  the  court,  to  the 
fullest  extent,  occupied  the  position  of  the  jury  in  the  consid- 
eration of  the  evidence  and  no  intendment  was  made  in  favor 
of  the  inferences  of  fact  claimed  by  the  party  whose  evidence 
was  demurred  to ;  hence  it  was  thought  unfair  to  deprive  a 
party  of  the  right  to  have  the  jury  draw  those  inferences  It 
required  the  acquiescence  of  both  parties  to  give  the  demur- 
rer any  effect.  It  was  conceived  to  be  quite  possible  that  the 
party  whose  evidence  was  demurred  to  should  prefer  to  have 
the  verdict  of  the  jury  to  the  opinion  of  the  court  as  to  the  in- 
ferences to  be  drawn  from  the  evidence,  and  under  the  early 
practice  the  court  refused  to  deprive  him  of  this  opportunity. 
If  he  was  willing  to  submit  the  matter  to  the  court,  he  could 
do  so  by  joining  in  the  demurrer,  but  this  the  courts  would 
not  compel.  In  certain  cases,  however,  it  was  seen  that  the 
evidence  was  so  definite  and  certain  that  but  a  single  infer- 
ence of  fact  could  be  drawn ;  in  such  cases  the  court  felt  that 
it  was  no  injustice  to  compel  a  joinder  in  demurrer,  and"  ac- 
cordingly modified  the  rule  to  this  extent. 

Evidence  Consisting  of  Matter  in  Writing. 

We  find,  for  example,  that  it  is  laid  down  in  some  of  the 
early  cases  that,  where  the  plaintifif,  for  his  evidence,  introduces 
a  matter  in  writing,  and  the  defendant  demurs,  there  the 
plaintiff  will  be  compelled  to  join  in  the  demurrer.  The  theory 
is  that  the  writing  is  of  such  a  definite  character  that  the 
court  can  determine  its  effect  as  well  as  the  jury.  It  is  not 
clear  whether  or  not  the  courts  went  to  the  length  of  holding 
that  questions  of  fact,  as  well  as  questions  of  law,  arising  upon 
a  writing,  would  be  considered.     It  is  probable,  however,  that 

and  that  then  the  jury  be  discharged,  and  we  will  put  the  said  mat- 
ter in  your  judgment."  The  plaintiflf,  however,  refused  to  join  in 
the  demurrer,  and  accordingly  the  matter  was  left  to  the  jury. 


4G8  DEMURRERS    TO    EVIDENCE.  (Ch.  15 

a  distinction  was  not  clearly  drawn,  and  that  the  feature  of 
certainty  about  written  evidence  was  considered  sufficient  to 
•  justify  the  court  in  determining  its  entire  effect.^ 


FINAIi    FORM— EVERY   INFERENCE   DEEMED    ADMITTED. 

305.  Tlie  operation,  of  the  demurrer  \«ras  made  more  and  more 
severe  against  the  party  demurring  until,  in  its  final 
shape,  it  ivas  held  that  all  facts  against  him  for  which 
there  was  any  inference  from  the  evidence  Tvould  be 
deemed    admitted. 

The  courts  gradually  narrowed  the  scope  of  the  demurrer 
as  they  grew  to  look  more  unfavorably  upon  it,  and  finally 
laid  down  the  rule  as  above  stated.  This  was  practically  ad- 
mitting the  adversary's  case,  and  was  the  death  blow  to  the 
use  of  demurrers  to  evidence.  This  position  was  not  reached 
without  an  intermediate  stage.  As  preliminary  to  this  doctrine, 
the  court  first  took  the  position  that,  on  a  demurrer  to  the  evi- 
dence, they  would  consider  that  they  had  the  right  to  find  for 
the  party  whose  evidence  was  demurred  to,  unless  it  was  im- 
possible from  the  facts  proved  to  reach  this  result.*    This  was 

3  Baker's  Case  (1000)  5  Coke,  104;  Chichester  v.  Philips,  T.  Raym. 
404-^  Thurston  v.  Slatford,  3  Salk.  155. 

4  Cocksedge  v.  Fanshaw  (1779)  1  Doug.  119:  A.  sued  X.,  a  city 
officer  who  collected  a  duty  on  corn  consigned  to  A.,  who  was  a 
freeman  factor  of  London,  by  M.,  who  was  a  nonresident.  It  was 
conceded  that  from  time  immemorial  the  duty  was  paid  by  non- 
residents importing  corn  Into  London.  The  question  was  whether 
there  was  a  right  on  the  part  of  freeman  factors  to  have  the  duty 
returned  to  them.  It  was  shown  that  there  was  a  usage  extending 
back  as  far  as  any  one  could  remember  by  which  the  duty  was  re- 
turned. On  two  successive  trials  the  jury  found  for  the  plaintifC. 
On  a  third  trial  the  evidence  of  the  usage  was  the  same,  and  the 
defendant  demurred  to  the  evidence.  Lord  Mansfield  says:  "But 
what  is  now  brought  before  the  court  on  this  demurrer?  Not  a 
question  whether  the  evidence  was  sufficient  to  satisfy  the  jury  of 
the  fact  of  the  custom,  for,  by  the  demurrer,  the  defendant  admits 
every  fact  tvhich  the  jury  could  have  found  upon  the  evidence.  The 
only  question  before  the  court  is  whether,  supposing  the  fact  to  be 
as  the  plaintifC  contends,  and  that  immemorially,  without  exception 
since  the  time  of  Richard  L.  the  usage  has  been  for  the  freeman 
factors  to  receive  the  farthings,  such  usage  could  by  any  possibility 


g  oU5)  FINAL    FORM.  40'J 

only  one  step  short  of  the  final  stage,  to  wit,  that  they  were 
bound  to  find  for  such  party  under  such  circumstances.  The 
case  which  finally  settled  the  practice  in  regard  to  demurrers 
to  evidence  was  that  of  Gibson  v.  Hunter.^  The  extracts  from 
Lord  Chief  Justice  Eyre  ciuoted  below  show  the  new  interpre- 
tation of  the  demurrer  upon  evidence,  and  practically  resulted 
in  its  discontinuance.*^    It  was  there  held  that  it  was  competent 

have  a  legal  comruencement.  *  *  *  The  only  point  now  before 
the  court  was  fully  considered  upon  the  second  motion  for  a  new 
trial;  and  we  were  all  of  the  opinion  that,  if  supported  by  im- 
memorial usage,  it  was  impossible  for  the  court  to  say  that  the  privi- 
lege could  not  have  a  legal  commencement." 

5  (,1793)  2  H.  Bl.  1ST.  In  this  case  the  demurrer  and  joinder  in 
demurrer  are  set  forth  in  full,  and  illustrate  the  form:  "And  the 
said  Thomas  Gibson  and  Joseph  Johnson  say  that  the  aforesaid 
matters,  to  the  jurors  aforesaid,  in  form  aforesaid,  shown  in  evi- 
dence by  the  said  Kobert  Hunter,  are  not  sufficient  in  law  to  main- 
tain the  said  issue  within  joined  on  the  part  of  the  said  Robert 
Hunter,  and  that  they,  the  said  Thomas  Gibson  and  Joseph  John- 
son, to  the  matters  aforesaid,  in  form  aforesaid,  shown  in  evidence, 
have  no  necessity,  nor  are  they  obliged  by  the  law  of  the  land,  to 
answer;  and  this  they  are  ready  to  verify;  wherefore,  for  want  of 
sufficient  matter  in  that  behalf,  shown  in  evidence  to  the  jury  afore- 
said, the  said  Thomas  Gibson  and  Joseph  Johnson  pray  judgment, 
and  that  the  jury  aforesaid  may  be  discharged  from  giving  any  ver- 
dict in  the  said  issue,  and  that  the  said  Robert  Hunter  may  be  pre- 
cluded from  having  his  said  action  against  the  said  Thomas  Gibson 
and  Joseph  Johnson.  And  the  said  Robert  Hunter,  for  that  he  hath 
shown  sufficient  matter  in  maintenance  of  the  said  issue  in  evidence 
to  the  said  jurors,  which  matter  the  said  Thomas  Gibson  and  Joseph 
Johnson  do  not  deny,  nor  in  any  manner  answer  thereto,  prays  judg- 
ment and  his  damages,  by  reason  of  the  premises,  to  be  adjudged  to 

him." 

6  "It  is  a  proceeding  by  which  the  judges,  whose  province  It  is 
to  answer  to  all  questions  of  law,  are  called  upon  to  declare  what 
the  law  is,  shown  upon  the  facts  in  evidence,  analogous  to  the  de- 
murrer uopn  facts  alleged  in  pleading.  AVhen  the  jury  has  ascer- 
tained the  fact,  if  a  question  arises  whether  the  fact  thus  ascertain- 
ed maintains  the  issue  joined  between  the  parties,  or,  in  other  words, 
whether  the  law  arising  upon  the  fact  (the  question  of  law  involved 
in  the  issue  depending  upon  the  true  state  of  the  fact)  is  in  favor 
of  one  or  other  of  the  parties,  that  question  is  for  the  judge  to  de- 
cide. Ordinarily,  he  declares  to  the  jury  what  the  law  is  upon  the 
fact  which  they  find;  and  then  they  compound  their  verdict  of  the 
law  and  fact  thus  ascertaine<l.  But  if  the  party  wishes  to  withdraw 
from  the  jury  the  application  of  the  law  to  the  fact,  and  all  consid- 


470  DEMURRERS   TO    EVIDENCE.  (Ch.  15 

to  the  defendant  to  insist  upon  the  jury  being  discharged  from 
giving  a  verdict  by  demurring  to  the  evidence,  and  to  obhge 
the  plaintiff  to  join  in  a  demurrer,  but  that,  in  so  doing,  the 
party  demurring  must  admit  the  whole  matter  of  fact  alleged 
by  his  adversary  to  be  true,  even  though  it  be  uncertainly  al- 
leged and  doubtfully  proved.  Under  the  rule  established  by 
this  case,  a  demurrer  to  the  evidence  was  no  better  than  a 
demurrer  to  the  pleading,  and  the  practice  became  obsolete.'^ 

eration  of  what  the  law  is  upon  the  fact,  he  then  demurs  in  law 
upon  the  evidence,  and  the  precise  operation  of  that  demurrer  is  to 
take  from  the  jury,  and  to  refer  to  the  judge,  the  application  of  the 
law  to  the  fact.  In  the  nature  of  things,  therefore,  and  reasoning 
by  analogy  to  other  demurrers,  and  having  regard  to  the  distinct 
functions  of  judges  and  of  juries,  and  attending  to  the  state  of  the 
proceeding  in  which  the  demurrer  takes  place,  the  fact  is  to  be  first 
ascertained.  The  reason  for  obliging  the  party  offering  evidence  in 
writing  to  join  in  demurrer  applies  to  the  first  sort  of  parol  evidence. 
but  it  does  not  apply  to  parol  evidence  which  is  loose  and  indeter- 
minate, which  may  be  urged  with  more  or  less  effect  to  a  jury,  and 
least  of  all  will  apply  to  evidence  of  circumstances,  which  evidence 
is  meant  to  operate  beyond  the  proof  of  the  existence  of  those  cir- 
cumstances, and  to  conduce  to  the  proof  of  the  existence  of  other 
facts.  According  to  Aleyn's  report  of  the  case  of  Wright  v.  Pindar 
(Aleyn,  18),  which  case  underwent  very  serious  consideration,  it  was 
resolved  'that  he  that  demurs  upon  the  evidence  ought  to  confess  the 
whole  matter  of  fact  to  be  true,  and  not  refer  that  to  the  judgment 
of  the  court;  and  if  the  matter  of  fact  be  uncertainly  alleged,  or 
that  it  be  doubtful  whether  it  be  true  or  no,  because  offered  to  be 
proved  only  by  presumptions  or  probabilities,  and  the  other  party 
demurs  thereupon,  he  that  alleges  this  matter  cannot  join  in  demur- 
rer with  him,  but  ought  to  pray  the  judgment  of  the  court  that  he 
may  not  be  admitted  to  his  demurrer,  unless  he  will  confess  the  mat- 
ter of  fact  to  be  true.'  It  seems  to  follow  as  a  necessary  conclusion 
that,  if  he  will  confess  the  matter  of  fact  to  be  true,  there  he  is  to 
be  admitted  to  his  demurrer,  and  that,  if  he  is  admitted,  the  other 
party  must  join  in  demurrer.  *  *  *  And,  my  Lords,  after  this 
explanation  of  the  doctrine  of  demurrers  to  evidence,  I  have  very 
confident  expectations  that  a  demurrer  like  the  present  will  never 
hereafter  find  its  way  into  this  house." 

7  The  following  note  to  the  case  of  Gibson  v.  Hunter  is  found  in 
Thayer,  Cas.  Ev.  (2d  Ed.)  p.  217 :  "This  case  seems  to  have  established 
a  new  rule  of  practice  in  England  for  a  proceeding  no  longer  favored  by 
the  courts.  Henceforth  little  was  heard  there  of  demurrers  upon  ev- 
idence. In  Sewell  v.  Burdick,  10  App.  Cas.  74,  99,  Lord  Blackburn 
says  of  this  demurrer  and  of  Chief  Justice  Eyre's  opinion :  'He  ex- 
plains it,  and  states  his  very  confident  expectations  (which  have  been 


§  306)  FINAL    FORM.  471 

306.  In  this  country  the  doctrine  as  finally  laid  down  by  the 
English  courts,  and  in  its  most  rigid  form,  has  been 
adopted,  s 

There  has  been  an  occasional  instance  of  the  demurrer  to 
evidence  in  several  of  the  states,  but  there  is  so  seldom  any  ad- 
vantage in  it,  and  the  purpose  it  serves  can  be  accomplished 
by  other  methods  so  much  more  adequate,  that  its  use  has  been 
rare.  Where  the  courts  have  been  called  upon  to  consider 
demurrers  of  this  sort,  they  have  followed  the  rule  laid  down 
in  Gibson  v.  Hunter,^  and,  in  their  attempts  towards  dis- 
couraging the  practice,  have  even  gone  to  the  extent  of  hold- 
ing that  in  case  of  a  demurrer  to  the  evidence,  where  the 
question  comes  up  on  appeal  from  the  action  of  the  court  in 
overruling  it,  they  will  consider  not  only  the  evidence  in  at 

justified  by  the  result)  that  no  demurrer  on  evidence  would  again 
be  brought  before  the  house.'  But,  although  the  rule  in  Gibson  v. 
Hunter  appears  to  have  been  a  novelty,  it  was  expounded  and  fol- 
lowed in  various  jurisdictions  in  this  country  as  if  it  were  an  es- 
sential part  of  the  common-law  doctrine  of  demurrers  upon  evidence ; 
as  in  Fowle  v.  Common  Council  of  Alexandria  (1826)  11  Wheat.  (U. 
S.)  320,  6  L.  Ed.  4&1 ;  Copeland  v.  New  England  Ins.  Co.  (1839)  22 
Pick.  (Mass.)  135 ;    and  .Jones  v.  Ireland  (1856)  4  Iowa,  63." 

8  For  a  brief  resumg  of  the  use  of  a  demurrer  as  evidence  in  crim- 
inal cases,  see  15  Harvard  Law  Rev.  738,  and  cases  there  cited. 

9  2  H.  Bl.  187 ;  Patrick  v.  Hallett  (1806)  1  Johns.  (N.  Y.)  241 :  A. 
against  X.  on  a  policy  of  insurance  for  total  loss  of  vessel  called 
Peggy.  The  evidence  of  the  plaintiff  showed  that  the  vessel,  as  far 
as  known,  was  seaworthy  when  she  left  port,  but  sprang  a  leak  and 
sunk  the  day  after ;  that  this  was  not  occasioned  by  storms,  violent 
winds,  currents,  or  accidents  of  the  sea;  that  the  vessel  was  built 
of  good  oak  lumber,  and  only  about  two  years  old.  The  defense 
was  unseaworthiness,  and  the  defendant  demurred  to  the  evidence. 
Lumgston,  J.,  says:  "If  there  were  any  evidence  now  from  which 
the  jury  might  have  dra\^Ti  this  conclusion,  it  must  be  considered  as 
admitted  by  the  demurrer;  and  that,  too,  without  any  scrupulous 
inquiry  whether  such  inference  would  be  correct  or  not,  for  courts 
should  not  encourage  this  practice.  It  is  not  only  productive  of  con- 
siderable delay  and  expense  (for  this  action  is  already  in  the  eighth 
year  of  its  existence),  but,  unless  all  inferences  are  admitted  which 
a  jury  might  have  drawn,  judges,  instead  of  confining  themselves 
within  their  province  of  deciding  on  questions  of  law,  will  also  be- 
come triors  of  every  matter  of  fact."  See,  also,  Colegrove  v.  Rail- 
road Co.  (1859)  20  N.  T.  492,  75  Am.  Dec.  418,  where  the  court  says : 
"Upon  the  conclusion  of  the  plaintiff's  testimony,  the  counsel  for  the 


472  DEMURRERS   TO    EVIDENCE.  (Cll.  15 

the  time  that  the  demurrer  was  interposed,  but  also  that  which 
has  been  put  in  subsequently. ^° 

Other  Means  of  Raising  Same  Questions  as  Raised  by  De- 
murrer. 

The  motion  for  dismissal  of  the  complaint,  or  to  direct  a 
verdict,  made  by  the  defendant  at  the  close  of  the  plaintiff's 
evidence,  is,  in  its  effect,  similar  to  the  demurrer  to  the  evi- 
dence, as  the  courts  finally  treated  it.  Whether  these  motions 
take  the  shape  indicated,  or  that  of  a  request  for  a  ruling  that 
the  plaintiff  cannot  recover,  they  amount  to  the  same  thing. 

New  York  &  New  Haven  Railroad  Company  offered  to  demur  to  the 
evidence.  Tlie  court  overruled  the  offer,  and  the  defendants  except- 
ed. The  defendants  have  not  been  in  any  respect  prejudiced  by  the 
refusal  of  the  court  to  permit  them  to  demur  to  the  evidence.  The 
party  demurring  is  bound  to  admit  as  true,  not  only  the  facts  prov- 
ed by  the  evidence,  but  also  the  facts  which  the  evidence  may  legal- 
ly conduce  to  prove  (2  Dunl.  Prac.  648) ;  and  this  is  precisely  what 
must  be  admitted  on  a  motion  for  nonsuit  or  for  a  peremptory  di- 
rection that  a  verdict  be  rendered.  The  party  nonsuited  or  agaiusf 
whom  a  verdict  is  ordered  is,  upon  appeal,  entitled  to  have  every 
doubtful  act  found  in  his  favor.  No  benelit  other  than  delay  could 
result  to  the  defendants  by  the  interposition  of  a  demurrer  which 
would  not  be  the  result  of  the  motion  made  by  them  to  dismiss  the 
complaint  after  the  evidence  on  both  sides  had  closed.  The  demur- 
rer to  evidence  has  long  since  gone  out  of  use  in  this  state,  and 
ought  not  any  longer  to  be  regarded  as  a  right  upon  which  an  ex- 
ception can  be  predicated."  Kansas  City,  Ft.  S.  &  G.  R.  Co.  v.  Fos- 
ter (1888)  39  Kan.  329,  18  Pae.  285;  Trout  v.  Railroad  Co.  (1873) 
23  Grat.  (Va.)  619. 

10  Weber  v.  Railway  Co.  (1889)  100  Mo.  194,  12  S.  W.  804.  and 
13  S.  W.  .587,  7  L.  R.  A.  819,  18  Am.  St.  Rep.  541.  Black.  J.,  says : 
"The  defendant,  at  the  close  of  the  plaintiff's  evidence,  submitted 
a  demurrer  to  the  evidence,  and  asked  a  like  instruction  at  the  close 
of  all  the  evidence,  both  of  which  were  refused.  The  demurrer  was 
not  only  interposed  at  the  close  of  the  plaiutift"'s  evidence,  but  a  like 
request  was  made  at  the  close  of  all  the  evidence.  The  defendant, 
by  putting  in  its  evidence,  took  the  chance  of  aiding  the  plaintiff's 
case ;  but  it  was  not  thereby  deprived  of  the  right  to  ask  the  court 
to  direct  a  verdict  on  all  of  the  evidence.  When  such  a  demurrer 
is  made  and  overruled,  and  the  defendant  puts  in  its  evidence,  this 
court,  in  reviewing  the  ruling,  will  do  so  in  the  light  of  all  of  the 
evidence.  If,  upon  all  the  evidence,  no  matter  by  whom  or  when  of- 
fered, there  is  a  case  to  go  to  the  jury,  we  do  not  reverse,  though 
the  demurrer  to  the  plaintiff's  evidence  should  have  been  given,  as 
the  case  stood  when  it  was  interposed." 


§  307)  ADMISSIBILITY    NOT    DETERMINED.  473 

If  overruled,  and  the  action  of  the  court  comes  up  for  review, 
as  in  the  case  of  demurrer  to  the  evidence,  the  court  considers 
the  whole  case.^^ 


ADMISSreil^ITY  OF  EVIDENCE  NOT  DETERMINED. 

307.    The  admissibility  of  evidence  cannot  be  determined  up- 
on a  demurrer. 

The  proper  method  of  questioning  the  admissibility  of  evi- 
dence is  by  objections  and  exceptions;  and  if  the  evidence  is 
allowed  to  go  in,  upon  a  demurrer  afterwards  interposed,  it 
must  be  considered  as  true.  Of  course,  if  it  is  irrelevant,  and 
therefore  no  inference  can  be  drawn  from  it  as  to  the  facts  in 
issue,  it  will  have  no  effect,  even  on  the  demurrer.  If,  how- 
ever, it  does  tend  to  prove  the  facts  in  issue,  even  though  it 
be  inadmissible  on  the  ground  of  incompetence,  on  a  demurrer 
it  will  be  considered,^^  and  full  effect  given  to  it. 

11  Columbia  &  P.  S.  R.  Co.  v.  Hawthorne,  144  U.  S.  202,  12  Sup. 
Ct.  591,  36  L.  Ed.  405;  Grand  Trunk  R.  Co.  v.  Cummings,  106  U. 
S.  700,  1  Sup.  Ct.  493,  27  L.  Ed.  266 ;  Accident  Ins.  Co.  v.  Craudal, 
120  U.  S.  527,  7  Sup.  Ct.  6S5.  30  L.  Ed.  740 ;  Northern  Pac.  R.  Co. 
V.  Mares,  123  U.  S.  710,  8  Sup.  Ct.  321,  31  L.  Ed.  296:  Robertson 
V.  Perkins,  129  U.  S.  233,  9  Sup.  Ct.  279,  32  L.  Ed.  686;  Stephens 
V.  Scott  (1890)  43  Kan.  285,  23  Pac.  555. 

12  Bulkeley  v.  Butler,  2  Barn.  &  C.  434. 


TABLE  OF  CASES  CITED. 


[the  figures  befeb  to  pages.] 


Abbot  V.  Heath,  241. 
V.  Plumbe,  436. 
Abrath  v.  Railroad    Co.,    68,    70, 

71,  74. 
Accident  Ins.  Co.  v.  Crandal,  473. 
Accola  V.  Railroad  Co.,  49. 
Ackley  v.  Welch,  95. 
Adam  v.  Kerr,  437. 
Adams  v.  Elwood.  33. 
V.  Lawson,  215. 
V.  Railroad  Co.,  348. 
V.  State,  266. 
Y.  Swansen,  274. 
Adams  Min.  Co.  v.  Senter,  50. 
Agau  V.  Hey,  365. 
Aiken  v.  Kennison,  170. 
Akers  v.  Kirke.  142. 
Alabama   Const.    Co.    v.    Waguon 

Bros.,  302. 
Alabama  G.   S.  R.   Co.  v.  Tapia, 

218. 
Albright  v.  Jones,  270, 
Alcock  V.  Assurance  Co.,  390. 
Aldoiis  V.  Cornwell,  459. 
Aldrich  v.  Pelham,  183. 

V,  Whitaker,   455. 
Alein  de  Wartone  v,  Simon,  91. 
Alexander  v.  Kaiser,  411. 
V.  Milwaukee,    34. 
V.  Smoot,  308. 
Allen  V.  Killinger,  139. 
V.  Pink,  457. 
V.  Swoope.  34. 
Allis  V.  Day,  237. 

m'kelv.ev.(2ded.)  (475) 


Alonzo  V.  State,  145. 
Alsop  V,  Bowtrell,  225. 
Alston  V.  Alston,  277,  279. 

T.  State,  160. 
Alsup  V.  State,  22. 
Altoona  Q.  M.  Co.  v.  Q.  M.  Co.,  24. 
American  Fire  Ins.  Co.  v.  Hazen, 

195,  197,  202. 
American  Life  Ins.   &  Trust  Co. 

V.  Rosenagle,  430. 
Ames  V.  Snider,  67. 
Amherst  Bank  v.  Root,  436. 
Amidon  v.  Hosley,  214. 
Amoskeag  Mfg.  Co,  v.  Head,  172. 
Anderson  v.  Cecil,  39. 
V.  Halverson,  121. 
V.  Hilker.  341. 
V.  Seropiau,  418. 
V.  State,  159. 
Anderson's  Ex'rs  v.  Long,  193. 
Andrews  v.  Frye,  379. 
Armor  v.  State.  198. 
Armstrong   v.   Railroad   Co.,   224, 
226,  2.36, 
V.  State,  102. 
V.  U,  S.,  42. 
Arnold  v.  Auldjo,  273. 
Aschenbach  v,  Keene.  120. 
Ashley  v.  Martin,  52. 
Ashley  Wire  Co.  v.  Steel  Co.,  95, 
Aslanian  v,  Dostumian,  110. 
Atchison.   T.   &   S.    F.   R.   Co.   v, 
Holloway,  231. 
V.  Watson,  245. 
Atlantic  Ins.  Co.  v.  Manning,  250. 


47G 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Attorney  General  v.  Bowman,  193, 
19G. 

V.  Briant,  373. 

V.  Hitchcock,  405. 
Austin  V.  State,  48,  52,  406. 

B 

Babb  V.  Paper  Co.,  423. 
Baccigalupo  v.  Com.,  103. 
Baccio  V.  People,  349. 
Bacon  v.  Frisbie,  363,  382,  384. 

V.  Green.  134. 
Baehner  v.   State,  377. 
Bailey  v.  McAlpin,  32, 
V.  Warner,  396. 
V.  Woods,  298. 
Baker  v.  Stackpoole,  135. 

V.  Taylor,  31G. 
Baker's  Case,  4GS. 
Ball  V.  Gates,  ,308. 

V.  Kane,  268. 
Baltimore     Permanent     Bldg.     & 

Land  Soc.  v.  Smith,  454. 
Baltimore  &  R.  Turnpike  Road  v. 

State,  236. 
Bamford  v.  Barton,  278. 
Banco  De  Sonora  v.  Casualty  Co., 

109,  342. 
Bank  of  Middlebury  v.   Rutland, 

206. 
Bank  of  Monroe  v.  Culver,  315. 
Bank  of  U.  S.  v.  Lyman,  134. 
Banning  v.  Griftin,  272. 
Barker  v.  Haskell,  305. 
V.  Kuhn,    386. 
V.  Ray,  319. 
Barnes  v.  Harris,  383. 

V.  Trompowsky,  437. 
Barnett  v.  State,  349. 
Barnewell  v.  Stephens,  192. 
Barnum  v.  Barnum,  281. 
Baron  de  Bode's  Case,  37. 
Barr  v.  Cardiff,  45. 
Barrett  v.  Stradl,  107. 
Barrick  v.  Austin,  1.34. 
Barrow  v.  State,  258. 
Barrows  v.  Downs,  233. 
Barry  v.  Butlin,  77. 


Bartholomew  v.  Bank,  33. 

Bartlett  v.  I'atton,  310,  320. 
V.  Smith,  54,  GO. 

Basye  v.  State,  382. 

Bateman  v.  Bailey,  349. 

Bathke  v.  Krassin,  122. 

Bathrick  v.  Tribune  Co.,  201. 

Battles  V.  Laudenslager,  195. 

Baucum  v.  George,  130. 

P.aumann  v.  Granite  Co.,  35. 

Baxter  v.  Abbott,  77. 
V.  McDonnell,  53. 
V.  Railroad  Co.,  424. 
V.  State,  325. 

Bay  V.  Cook,  304,  307. 

Beach  v.   U.   S.,  380. 

Bealey  v.  Shaw,  97. 

Beasley  v.  Beckley,  34. 
Beatson  v.  Skene,  371,  373. 

Beaty  v.  Knowler,  .35. 

Beaubien  v.  Cicotte,  2G2. 

Beaudette  v.  Gagne,  141. 

Becker  v.  Koch,  399,  402. 

Beckham  v.  State,  154. 

Beckwith  v.  Mace,  348. 
V.  Sydebotham,  225. 

Bediugfield's  Case,  349. 
Beeckman  v.  Montgomery,  121. 
Beedy  v.  Macomber,  319. 
Beery  v.  U.   S.,  162. 
Beglin  v.  Insurance  Co.,  342. 
Belding  v.  Archer,  135. 
Bell  V.  Brewster.  250,  269. 
V.  Chambers,    408. 
V.  Perkins,  315. 
V.  Walker,  10. 
V.  Wiltson,  4.56. 
Belote  V.  State,  162. 
Benedict  v.  Rose,  170. 
Bennett  v.   State,    198. 
Bennison  v.  Jewison,  ,54. 
Benson  v.  Lundy,  130,  132. 
Bent  V.  Baker,  358. 
Perg  V.  Leather  Co.,  178. 
Bergen  v.  People,  161,  293. 
P.ernheim  v.  Dibrell,  191. 
Berry  v.  Com.,   IGI). 
Betcher  v.  Insurance  Co.,  44. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


4^T 


Bethea  v.  Byrd,  339. 
Betts  V.  Fruit  Exebauge,  265. 
Bevau  v.  Bank,  450. 
Bigelow  V.  Foss,  13G. 
Bigler  v,  Atkius,  139. 

V.  Reyber,  3SG. 
Bigley  v.  AVilliams,  348. 
Billingburst  v.  Yickers,  77. 
Billings  V.  State,  192. 
Biuuey  v.  Russell,  431. 
Bird  V.  Com.,  37. 

V.  Olmstead,    112. 
Birt  V.  Rotbwell,  31. 
Bisbop   V.   Insurance  Co.,  33,  95. 
Bissell  V.  Adams,  135. 

Blackburn  v.   Crawfords,  273. 

Black  V.  Ward,  117. 
V.  Woodrow,  297. 

Blacker  v.  State,  161. 

Blackington  v.  Jobnson,  408. 

Blade  v.  Nolaud,  431. 

Blair  v.  Bank,  4G3. 

V.  Seaver,  353,  355. 

Blake  v.  People,  222. 
V.  Sawin,  443. 

Bland  v.  Warren,  314. 

Blandy's  Case,  391. 

Bletban  v.  Bonner,  51. 

Bloom  V.  Wanner,  94. 

Blurton  v.  Toon,  438. 

Board  of  Com'rs  of  Jackson  Coun- 
ty V.  State,  33. 

Board  of  Com'rs  of  Wabasb  Co.  v. 
Pearson,  179. 

Board  of  Trustees  of  Tp.    13   v. 
Misenbeimer,  447. 

Bod  man  v.  Society,  463. 

Boebme  v.   Sovereign  Camp,  299. 

Boggs  V.  Clark,  31. 

Bogle's  Ex's  V.  Kreitzer,  210. 

Bonnell  v.  Mawka,  306. 

Boon  V.  Wentbered's  Adm'r.   204. 

Borden  v.  Falk  Co.,  21. 

Borougb   of   Birmingbam  W.    An- 
derson, 334. 

Borum  v.  Fouts,  383. 

Boston  V.  Staffs.  33. 

Boswortb  V.  Railroad  Co.,  23. 


Boucber  v.  Robeson  Mills,  417. 
Bouldeu  V.  Mclntire,  67. 
Bouldin  v.  Rice  Mills  Co.,  308. 
Bowdoiubam  v.  Pbippsburg,  108. 
Boweu  V.  Gbase,  316. 

V.  Huntington,  242. 
Bowers  v.  State,  382. 
Bow  V.  People,  354. 
Boyce  v.  Lumber  Co.,  178. 
Boyd  V.  Railroad  Co.,  344. 

V.  U.  S.,  170. 
Bradford's  Case,  431. 
Bradley  v.  Goodyear,  303,  308. 
V.  Oorbam.  51. 
V.  Ligbtcap,  269. 
v.  Mirick,  287.  407. 
Bradsbaw  v.  Combs,  399. 
Bragg  V.  Geddes,  138. 
Brain  v.  Preece,  301. 
Bram  v.  U.  S.,  151.  158. 
Branstrator  v.  Crow.  104. 
Bredlau  v.  York,  261. 
Brewer  v.  Bowersox,  114. 
Bridges  v.  Railroad  Co.,  63. 
V.  Railroad  &  L.  Co.,  44 
Brieeland  v.  Com.,  71. 
Briffitt  T.  State,  47. 
Briggs  V.  Hervey,  95. 

V.  People,  409. 
Brigbam  v.  Palmer,  436. 
Britisb  American  Ins.  Co.  v.  Wil- 
son, 431. 
Britisb  &  .American  Mortg.  Co.  v. 

Tibballs,  49. 
Brodbead  v.  Wilste,  238. 
Brogy  v.  Com.,  293. 
Brooks,  Estate  of,  247. 
V.   Scbool  Dist.,  452. 
V.  Bronson.  302. 
Brown,  433. 
Com.,  144,  294. 
Everbard.  456,  457. 
Foster,  364. 
Oldbam.    96. 
Perez,  213. 
Piper,  46.  47. 
Walker,  375. 


Brown 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
Y. 

Brovles  v.  State,  164. 


478 


CASES   CITED. 
[The  flgTires  refer  to  pages.] 


Brubaker's  Adm'r  v.  Taylor,  399 
Bruce  v.  Beall,  419. 

V.  Priest,  195,  204. 
Bryan  v.  Beckley,  47. 
Bryant  v.  Foot,  96,  98. 

V.  Railroad  Co..  202. 
Bubster  v.  State,  151. 
Buchanan  v.  Moore,  339. 
Buckey    v.    Buckey,   103. 
Buckley  v.  Buckley,  408. 
Buffum  V.  Harris,  237. 
Buie  V.  Carver,  297. 
Bulkeley  v.  Butler,  473. 
Bullard  v.  Pearsall,  401. 
Bull  V.  Com.,  325. 

V.  Loveland,   374,   435. 
Bullock  V.  Smith,  130. 
Burbank's  Will,  In  re,  251. 
Burdge  v.  State,  153. 
Burgess  v.  Telegraph  Co.,  109. 
Burlington  Mfg.  Co.  v.  Com'rs,  24, 
Burnett  v.  Simpkins,  202. 

V.  State,  190. 
Burnham  v.  Ayer,  250,  446. 

V.  Dorr,  459. 

V.  Morrissey,  378. 

V.  Webster,  34. 
Burns  v.  Maltby,  127. 

V.  Thompson,  459. 
Burr  V.  Sim,  89. 
Burrough  v.  Martin,  392. 
Burroughs  v.  U.  S.,  329. 
Burt  V.  Newspaper  Co..  209. 

V.  State,  349. 
Burton  v.  Oil  Co.,  458. 

V.  State,  158. 
Bush  V.  Garner,  233. 

V.  Prosser,  211. 

V.  State,  332. 
Bushell's  Case,  9. 
Bustin  V.  Rogers,  308. 
Butcher  v.  Bank,  37. 
Butler  V.  Butler,  321. 

V.  Insurance  Co.,  240. 

V.  Price,  137. 

V.  Millett,  130,  132. 

V.  Wright,  175. 
Butrick,  In  re,  209. 


Butts  V.  Swartwood,  353. 
Bycyznski  v.  Steel  Co.,  81. 


Cady  V.  Walker,  384. 
Cain  V.  Uhlman,  231. 
Caldwell  v.  Caldwell,  321. 
Callen   v.    Rose,    140, 
Cameron  v.  Blackman,  49. 

V.  Peck,    434. 
Camp    V.    State,   205. 
Campbell    v.    Campbell,    412. 

V.  Iron  Co.,  250. 
Cancemi  v.  People,  196,  198. 
Cappel  V.  Weir,  463. 
Card  V.  Moore,  319. 
Carley  v.  Ilailroad  Co.,  187. 
Carmody  v.  Transit  Co.,  32. 
Carmon  v.  State,  47. 
Carnes  v.  Crandall,  273. 
Carney  v.    Hennessey,  463. 
Carpenter  v.  Dexter,  3!j. 

V.  Jones,  433. 

V.  Railroad  Co.,  81. 

V.  Tucker,  293. 

V.  Ward,  411. 
Carr  v.  Bank,  38. 

V.  Railroad  Co..  195. 
Carter  v.   Com,,  210. 

V.  Jackson,  250. 

V.  State,  360. 
Case  V.  Marks,  212. 

V.  Potter,  308. 
Cashin  v.  Railroad  Co.,  347. 
Cass  V.  Railroad  Co..  178. 
Castner  v.   Sliker,  222. 
Cauuce  v.  Spauton,  94. 
Cavallaro  v.  Railroad  Co.,  109. 
Cavaness  v.  State,  102. 
Central  R.  of  Georgia  v.  Broker- 
age Co.,  180. 
Chadsey  v.  Greene,  139. 
Chaffee  v.  Taylor,  250. 

V.  U.  S.,  315. 
Chahoon  v.  Com.,  382. 
Chamberlain  v.  Iba,  147. 

V.  People,  357. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


479 


Chamberlain  v.  Willsou,  377. 
Chambers  v.  Bernasconi,  310. 
Chapin  v.  Dobson,  456. 
Chapman   v.   Chapman,  273,   278, 
279. 
V.  Twitehell,   139. 
Charter  v.   Charter,  464. 
Charter  Oak  Life  Ins.  Co.  v.  Ro- 
de!, 222. 
Chase  v.  Mills  Co.,  290.  291. 
V.  Railroad  Co.,  202. 
V.  Smith,  316. 
V.  State,  19S. 
Cheeney  v.  Arnold,  398. 
Chespeake  Club  v.  State,  373,  377, 

380. 
Chesapeake    &    O.    Canal    Co.    v. 

Railroad  Co.,  37. 
Chesapeake  &  O.  R.  Co.  v.  Stock, 

427. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Clark, 

202. 
Chicago,    R.    I.    &    T.    R.    Co.    v. 

Langston,  417. 
Chicago,  St.  L.  &  N.  O.  R.  Co.  v. 

Provine,  304. 
Chicago  Terminal  Transp.  R.  Co. 

V.  O'Donnell,  217. 
Chicago  Transit  Co.  v.  Campbell, 

76. 
Chicago  &  A.  R.  Co.  v.  Clausen, 
416. 
V.  Corson,  423. 
V.  Jennings,  66. 
Chicago  &  E.  I.  R.  Co.  v.  Chan- 
cellor. 349. 
V.  Crose,    187. 
Chichester  v.  Raym,  468. 
Chilberg  v.  Lyng,  458. 
Child  V.  Kingsbury,  336. 
Chillicothe  Ferry  Road  &  Bridge 

Co.  V.  Jameson,  .385. 
Chippewa  Bridge  Co.  v.  Durand, 

452. 
Chirac  v.  Reinicker,  382. 
Chisholm  v.  Machine  Co.,  306. 
Chism  V.   State,  403. 
Chittenden  v.  Columbiis,  35. 


Choctaw,  O.  &  G.  R.  Co.  v.  Rolfe, 

139. 
Chretien  v.  Railroad  Co.,  345. 
Christiansen  v.  Tank  Works,  2.33. 
Christopherson    v.    Railroad    Co., 

344. 
Chubb  V.  Gsell,  21.5. 

V.  Salomons,  373. 
Cincinnati,  H.  &  I.  R.  Co.  v,  Mc- 

Dougall,  141. 
Cirello  v.  Express  Co.,  420. 
Citizens'    Rapid    Transit    Co.    v. 

Dew,  342. 
City  Council    of    Montgomery    v. 

Wright,  34. 
City    Nat.    Bank    v.    Commission 

Co.,  40. 
City  of  Aurora  v.  Cobb,  408. 

V.  Hillrrfan,    222. 
City  of  Austin  v.  Forbis,  139. 
City  of  Berne  v.  Bank,  41. 
City  of    Bloomington    v.    Shrock, 

237. 
City  of  Chicago  v.  Doolan,  196. 
V.  Murdoch,  44. 
V.  Powers,  182. 
City  of  Dallas  v.  Beeman,  452. 
City  of    Ft.    Wayne    v.    Coombs, 

228. 
City  of  Hartford  v.  Maslen,  283, 

340. 
City  of  Huntington  v.  Lusch,  422. 
City  of  Lawrence  v.  Methuen,  224. 
City  of   Monterey   v.   Jacks,   283, 

335. 
City  of  New  York  v.  Trust  Co., 

35. 
City  of  Parsons  v.   Lindsay,  218, 

223. 
City  of  Portland  v.  Tick,  35. 
City  of  Ripon  v.  Bittel,  237,  238. 
City  of    South    Bend    v.    Hardy, 

409,  410. 
City  of  Topeka  v.  Bradshaw,  417. 
Cla'pp  V.  Fullerton,  248. 

V.  Peck,   401. 
Clark  V.  Baird.  2.30. 
V.  Bank,  302. 


480 


CASES   CITED. 
[Tho  figures  refer  to  pages.] 


Clark  V.  Braden,  42. 

V.  Brown,  213. 

V.  Elkiiis,  233. 

V.  Freeman,  447. 

v.  Hills,   336. 

V.  Vorce,  297,  414. 
Clarke's  Ex'rs  v.   Canfield,  89. 
Clary's  Adm'rs  v.  Clary,  247. 
Clary-Squire    v.    Publishing    Co., 

424. 
Clawson  v.  State,  144. 
Clealand  v.   Huey.  289,  298. 
Cleaveland  v.   Railroad  Co.,   184. 
Clegg  V.  Railroad  Co.,  419. 
Clem  V.  Railroad  Co.,  106. 
Cleveland  &  T.  R.  Co.  v.  Perkins, 

427. 
Cline  V.  State,  293. 
Clinton  v.  Howard,  236. 

V.  State,  353. 
Cliquot's    Champagne,    230,    264. 
Close  V.  Olney,  374. 
Coate  V.  Speer,  340. 
Coates  V.  Sulau,  213. 
Coburn  v.  Odell,  377. 
Cochran  v.  Linville  Imp.  Co.,  269. 
Cocksedge  v.  Fanshaw.  468. 
Codman  v.  Caldwell,  307. 
Cody  V.  Coaly,  447. 
Coe  V.  Hobby,  4.56,  457. 

V.  Van  Why,  223. 
Colbert  v.  State,  366. 
Colegrove  v.  Railroad  Co.,  471. 
Cole  V.  Hills,  461. 

V.  State,  411. 
Coleman  v.  Com.,  360,  361. 

V.  Frazier,  318. 

V.  People.  170,  192. 
Collier  v.  Society,  3.5. 

V.  State,  331. 
Colling  V.  Treweek,  426. 
Collins  V.  Com.,  29.3. 

V.  Dorchester,  183. 

V.  Gm)ert,  00. 

V.  Railroad  Co.,  184. 
Colorado  Coal  &  Iron  Co.  v.  U.  S.. 
67. 


Colmnbia  &  P.  S.  R.  Co.  v.  Haw- 
thorne, 179,  473. 
Colwell  V.  Colwell,  357. 
Coit  V.  Tracy,  136. 
Combs  V.  Hodge.  127. 

V.  Winchester,  412. 
Commissioners  of  Allegheny  Coun- 
ty V.  Warfield,  455. 
Com.  V.  Abbott.  214. 

V.  Bezek,   102. 

V.  Bishop,  331. 

V.  Bonner,  409. 

V.  Bradford,    190. 

V.  Brayman,   222. 

V.  Brown,  164. 

V.  Buzzell,  354. 

V.  Casey,    331. 

V.  Choate,  71. 

V.  Cleary.  198,  293. 

V.  Coe,  59. 

V.  Cooper,  325. 

V.  Cressinger,   158. 

V.  Culver,  152. 

V.  Daley,  92. 

V.  Densmore.  318. 

V.  Desmond,  33. 

V.  Eastman,   251. 

V.  Eddy,  102. 

V.  Emery,  431. 

V.  Ford.  392. 

V.  Gorham.  362. 

V.  Gray.  204. 

V.  Green,  99,  363. 

V.  Haney,  325. 

V.  Hardy,  197. 

V.  Harlow.    369. 

V.  Hourigan,  411. 

V.  Howe,  153,  158. 

V.  .Tames,  162. 

V.  .Jeffs.  392. 

V.  Kendall,  203. 

V.  Kimball.  378.  .381. 

V.  King,  160. 

V.  Knapp.  1.54,  162. 

V.  Lawler,  211. 

V.  Leach,  238. 

V.  Locke,  67. 

V.  Lynes,  59,  361. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


481 


Com.  V.  McKenna,  293. 

V.  Mead,  303. 

V,  Moore.  92. 

V.  Morrell,  405,  428. 

V.  Mullins,  59. 

V.  Myers,  156,  158. 

V.  Nefus,  249.  445. 

V.  O'Brien,  197,  213. 

V.  Pecham,   47. 

V.  Phillips,  281. 

V.  Piper,  237. 

V.  Pipes,  190. 

V.  Pitsinger,    160. 

V.  Porter,  56. 

V.  Pratt,  377. 

V.  Preece.  153. 

V.  Reynolds,  159. 

V.  Richards.  293.  297,  298. 

V.  Roberts,  325. 

V.  Robinson,  59,  62,   190. 

V.  Rogers.  200. 

V.  Russell.    153,    189. 

V.  Scott,  219. 

V.  Sego,  154. 

V.  Shaw,  376. 

V.  Shew,    153. 

V.  Smith,  370. 

V.  Stevenson,  282. 

V.  Sturtivant,  222,  223. 

V.  Thompson,  220. 

V.  Trefethen,    259. 

V.  Waterman,  144. 

V.  Webster.  198. 

V.  Welsh,  401. 

V.  York,  106. 
(Domstock  V.  Smith.  461. 

V.  Society,  103. 
Conant  v.  Bank.  454. 
Conde  v.  Schenectady,  51. 
Cbnery  v.  Hayes,  135. 
Connecticut  :Mut.  Life  Ins.  Co.  v. 
Lathrop.  218,  220,  246. 

v.  Si-haefer.  303. 

V.  Schwenk,  273.  274. 
Connelly  v.  Brown.  257. 
Connors  v.  People.  370. 
Consolidated  Real  Estate  &  Fire 
Ins.  Co.  V.  Cashow,  233. 
m'kelv.ev.(2d  ED.) — 31 


Consolidated  Traction  Co.  v.  Lam- 

bertson,  261. 
Consumers'  Gas  Trust  Co.  v.  Lit- 
tler, 44. 
Continental  Ins.  Co.  v.  Insurance 

•Co.,  190. 
Cooke  V.  Tauswell,  443. 
Cook  V.  Fuson,  218. 

V.  Guirkin,    71. 

V.  Insurance  Co.,  222. 

V.  Railroad  Co..  299. 
Cooley  V.  Collins,  3(t8. 
Coolidge    V.    Learned,    98. 
Coon  V.  People,  400. 

V.  Swan.  383. 
Coonrod  v.  Madden,  427. 
Cooper  V.  Bockett,  460. 

V.  Marsden.  301. 
Copeland  v.  Insurance  Co.,  471. 

V.  State,  416,  418. 
Copes  T.  Pearce,  272. 
Coppermau  v.  People.  190. 
Corbett  v.  Joannes,  455. 
Coruelissen  v.  Ort,  135. 
Cornett  v.  Williams,  434. 
Corning  v.  Corning,  194. 

V.  Nail  Factory,  97. 
Cornish  v.  Insurance  Co.,  227. 
Cortland  Mfg.  Co.  v.  Piatt.  395. 
Costello  v.  Crowell.  315. 
Costelo  V.  Crowell,   170. 
Costigan  v.  Lunt.  295. 
Coulter  V.  Express  Co.,  404. 
Counselman  v.  Hitchcock.  381. 
Count  Joannes  v.  Bennett,  431. 
County    of    Mahaska    v.    Ingalls, 

320,  321. 
Courser  v.  Kirkbride.  223. 
Covington     Drawbridge     Co.      v. 

Shepherd.  35. 
Cowan  V.  Kinney,  204. 
Cowley  V.  People,  241. 

V.  School   Dist.,  453. 
Cox  V.  State.  334. 
Coye  V.  Leach,  115. 
Crahtree  v.  Atchison,  69. 
Craig  V.   State.  205. 
Craufurd  v.  Blackburn,  277.  278. 


482 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Crawford  v.  Railroad  Co.,  139. 
Cropp  V.  Cropp,  247. 
Cross  V.  Bell,  79. 

V.  Cross,  91,  400. 

V.  Riggins,  3S3. 
Crossmau  v.  Crossinan,  461. 
Crowniusliield    v.    Crowniiishield, 

76,  106. 
Oudney  V.  Cudney,  263. 
Culver  V.  Marks,  391. 
Cunniugliam  v.  Bank,  250. 

V.  Railroad  Co.,  422. 
Curren  v.  Crawford,  306,  314. 
Currie  v.  Child,  437. 

V.  Railroad  Co.,  172. 
Currier  v.  Gale,  320. 
Curtis  V.  Aaronsou,  336. 

V.  Belknap,  443. 

V.  Hoadley,   195. 

V.  March,  44. 
Cuyler   v.  Ferrill,  41. 
C.  &  M.  Elec.  R.  Co.  v.  Diver,  53. 

D 

Dabney  v.  Mitchell,  365. 
Dady  v.  Condit,  294. 
Daggett  V.  Mfg.  Co.,  81. 
Daily  v.  Railroad  Co.,  327. 
Dain  v.  WyckofC,  195. 
Dalrymple  v.  Dalrymple,  37. 

V.  Williams.  363. 
Dalton  V.  Angus,  85. 
Darling  v.  Westmoreland,  182. 
Daugherty  v.  Lady,  214. 
Davidson  v.  Cooper,  459. 
Davie  v.  Briggs,  88. 
Davies  v.  Bierce,  4.56. 

v.  Humphreys,  323. 

V.  Lowndes,  271,  272. 
Davis  V.  Allen,  392. 

V.    Clinton,    269. 

V.  Com.,  149. 

V.  Field,  392. 

V.  Fredericks.  449. 

V.  Kline,  296. 

V.  Knights  of  Honor,  365. 

V.  Kobe,  50. 


Davis  V.  Marxhausen,  107. 

V.  Sanford,  308. 

V,  Sigourney,  433. 
Dawson  v.  Dawson,  310. 

V.  Mayall,  272. 

V.  Orange.  131,  335,  340,  428. 
Day  V.  Lumber  Co.,  179. 

V.  Ross.  197. 

V.  Stickney,  412. 
Deacon  v.  Mattison.  458. 
Dean  v.  McLean,  237. 

V.  Ross,  135. 
De  Cells'  Adm'r  v.  U.  S.,  52. 
Deering  v.  Schreyer.  288,  299. 
De  Forge  v.  Railroad  Co.,  424. 
De  Haven  v.  De  Haven,  272,  398. 
Delafleld  v.  Parish,  103. 
De  Lancey  v.  PiepgTas,  97. 
Delaware  Indians  v.  Cherokee  Na- 
tion, 454. 
Delaware,  L.  &  W.  R.  Co.  v.  Con- 
verse, 64. 
Delaware   &   C.    Steam   Towboat 

Co.  V.  Starrs,  228. 
Demonbreun  v.  Walker,  443. 
Denegre  v.  Walker,  27. 
Dennie  v.  Williams,  127. 
Dennis  v.  Weekes,  262. 
Denver  &  R.  G.  R.  Co.  v.  Roller, 
419. 

V.  Scott.  247. 

V.  U.  S.,  35. 
Deshon  v.  Insurance  Co.,  401. 
Detweiler  v.  Toledo,  336,  337. 
Deutschmann  v.  Railroad  Co..  366. 
Devencenzi  v.  Casselnelli,  405. 
Devoto  V.  Com.,  190. 
Dewey  v.    Moyer,   144. 
De  Witt  V.  Barly,  221. 
De  Wolf  V.  Strader,  383. 
Dexter  v.  Booth,  308. 
Diamond  v.  Railroad  Co.,  184. 
Dibble  v.  Cole.  129. 
Dick  V.  Zimmerman,  95. 
Dickenson  v.  Clark,  134. 
Dickerman  v.  Graves.  357. 
Dickerson  v.  State,  1.59. 
Dickey  v.  Bank,   112. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


483 


Didsbury  v.  Thomas,  336. 
Digruan  v.  Nelson,  111. 
Dillard  v.  U.  S.,  411. 
Dillingham  v.  Snow,  336. 
Dirks  V.  Trust  Co.,  75. 
District    of    Columbia    v.    Arms, 

1S2,  360. 
Dixon  V.  Niccolls,  45,  48. 

V.  State,  331. 
Dobbins  v.  Electric  Co.,  391. 
Dobie  V.  Armstrong,  103. 
Dobson  V.  Philadelphia,  424. 
Dockwray  v.  Dickenson,  256. 
Dodge  V.  Goodell,  144. 
V.  Haskell,  170. 
V.  Trust  Co.,  132,  133. 
Doe  V.  Harvey,  428. 
Doe  ex  dem.  Bamford  v.  Barton. 

278. 
Doe  ex  dem.  Banning  v.  Griffin, 

272. 
Doe  ex  dem.  Clark  v.  Braden.  42. 
Doe  ex  dem.  Didsbm-y  v,  Thomas, 

336. 
Doe  ex   dem.    Foster   v.   Earl  of 

Derby,  289. 
Doe  ex  dem.  Gilbert  v.  Ross,  430, 

432,  434. 
Doe  ex  dem.  Gord  v.  Needs,  463. 
Doe   ex    dem.    Hiscocks    v.    His- 

cocks,  464. 
Doe  ex  dem.   Knight  v.   Nepean, 

88. 
Doe   ex   dem.    Moffit   v.    Wither- 

spoon,  272. 
Doe  ex  dem.  INIudd  v.  Suckermore, 

250,  251,  252. 
Doe  ex  dem.  Oldham  v.   Wolley, 

442. 
Doe  ex  dem.  Patteshall  v.  Turford, 

309,  311. 
Doe   ex   dem.    Perry   v.    Newton, 

252,  449. 
Doe  ex  deni.  Tatum  v.  Catomore, 

460. 
Doheny  v.  Lacy,  364. 
Dolan      V.      Herring-Hall-Marvin 

Safe  Co..  229. 


Dolder  v.  Lord  Huntlngfleld,  41. 
Dole  V.  Johnson,  59. 

V.  Wilson,  43. 
Dollner  v.  Lintz,  214. 
Dolon  V.  Herring-Hall-Marvin  Co., 

223,  224. 
Douahoe  v.  Railroad  Co.,  238. 
Donnelly  v.  State,  331,  408. 
Dooner  v.  Canal  Co.,  223. 
Dorr  V.  School  Dist.,  130. 
Dorr  Cattle  Co.  v.  Railroad  Co., 

20. 
Dorry  v.  Railroad  Co.,  348. 
Douglass  v.  Tousey,  213. 
Dowdell  V.  State,  42. 
Dowzelot  V.  Rawlings,  135. 
Doyle  V.  Bradford,  35. 

V.  Levy,  140. 
Drake  v.  Drake.  464. 

V.  State,  331. 
Drew  V.  State,  199. 
Driscoll  V.  Taunton.  120. 
Drown  v.  Allen,  213. 
Drum-Flato    Commission    Co.    r. 

Bank.  206,  313. 
Drui-y  V.  Railroad  Co.,  334,  335, 

338. 
Duby  V.  Jackson,  49. 
Dudley  v.  McCluer,  195. 
Duffy  V.  People,  162. 
Dunafin  v.  Barber,  146. 
Dunbar  v.  Armstrong,  192. 
Dunham's  Appeal,  221. 
Dunn  V.  Edison  Co.,  435. 

V.  State,  333. 
Dupays  v.  Shepherd.  42. 
Du  Pont  V.  Davis,  275. 
Dupoyster  v.  Gagani.  276. 
Duttenhofer  v.  State.  386. 
Dwyer  v.  Collins.  432. 
Dye  V.  Com.,  292. 
Dyer  v.  Smith.  233. 


Eiigan  v.   State,  47. 
Eagle's  Case,   89. 
Eagleton  v.  Kingston,  449. 


484 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Earl  V.  Tupper,  29G. 
Earle  v.  Earle,  344. 
Earl    of    Dunraven    v.    Llewellyn, 

336. 
Eastman  v.  Gould,  GO.  67,  71. 

V.  Martin,  272,  273. 

V.  Moulton,  302,  308. 
Eastmore  v.  Brinkley,  71. 
Eaton  V.  Alger,  290. 
Eckler   v.   Alden,   455. 
Edelen  v.  Gough,  445, 
Edelstein  v.  Schuler,  40. 
Edson  V.  Railroad  Co..  25. 
Edwards  v.  Gimbel,  295. 

V.  Navigation  Co.,  185. 
Eel  River  Draining  Ass'n  v.  Topp, 

35. 
Egbert  v.  Egbert.  103. 

V.  Greenwalt.    91. 
Eherenkrook  v.  Webber,  460. 
Eble's  Estate,  In  re,  66. 
Eidt  V.  Cutter,  239. 
Eisenhart  v.  Slaymaker,  426. 
Eiscnlord  v.  Clum,  274.  275,  279. 
Eitelgeorge  v.  Ass'n,  138. 
Elihu  Thompson,  The,  27. 
Elkinton  v.  Brick,  103. 
Ellieott  v.  Pearl,  334. 
Ellis  v.  Cowne,  314. 

V.  Harris,  316. 

V.  Park,  49,  52. 

V.  Smith,  436. 

V.  State,  59. 
Ellison  V.  Branstrator,  337. 
Elmendorf  v.  Taylor.  36. 
Elms  V.  Chevis,  .306. 
Elsworth  V.  Muldoon,  323. 
Elwell  V.  Cunningham,  431. 

V.  Mersick.  431. 
Ely  V.  Ely.  460,  461. 

V.  Railroad  Co.,  179. 
Emerson  v.  Light  Co..  ISO. 
Emery  v.  Fowler.  297. 
Emery's  Case.  382. 
Emmet  v.  Perry,  129. 
Emmons  v.  Barton,  130. 
Empire  Mfg.  Co.  v.  Stuart,  447. 
Enlow  V.  Hawkins,  245. 


Ennis  v.  Smith,  232. 
Ephraims  v.  Murdock,  285,  297. 
Equitable    Mfg.    Co.    v.    Howard, 

311. 
Eskridge  v.  State,  158. 
Estes  V.  Railroad   Co.,  428. 
Evans  v.  Arnold,  103. 
Evanston  v.  Gunn,  341, 
Evansville  &  C.  R.  Co.  v.  Smith, 

51. 


Faber  v.  Coal  Co.,  239. 

Fabian  v.  Traeger,  190,  191. 

Fairlie  v.  Hastings,  348. 

Fall  v.  Fall.  130. 

Farmers'    Bank   of   Lancaster   v. 

Whitehill,  315. 
Farmers'    Loan    &    Trust    Co.    v. 

Siefke,  66,  68,  70. 
Faxon  v.  Hollis,  302,  .304. 
Featherstone  v.  People,  361. 
Fee  V.  Taylor,  251. 
Fell  V.  Railroad  Co.,  297. 
Fenton  v.  State,  47. 
Ferguson  v.  Clifford.  2.33. 

V.  Hubbell.  223,  226,   236. 
Ferrers  v.  Shirley,  448. 
Ferris  v.  Hard,  121,  147. 
Fidelity  Mut.  Life  Ass'n  v.  Winn, 

136. 
Field  V.  Bo:\'nton.  320. 

V.  Railroad.  1.S4. 

V.  Thompson,  308. 
Fife  V.  Com,,  73. 
Findlay    Brewing    Co.    v,    Bauer,. 

183. 
Finn  v.  Com.,  293. 
Finnegan  v.  Dugan,  451. 
First  Nat.  Bank  v.  Strait,  135. 

V.  Wisdom's  Ex'rs,  422. 
Fisher  v.  Donovan,  111. 

V.  Hart,  401. 
Fitch  V.  Chapman,  132,  .320. 
Fitzgerald  v.  Coleman,  465. 

V.  McCarty,  304. 
Fitzwalter  Peerage,  The,  448. 
Flagg  V,  Mason,  131,  339, 


CASES  CITED. 
[The  figures  refer  to  pages.] 


485 


Flanigeu  v.  Insurance  Co.,  37. 
Flannery  v.  VanTassel,  132. 
Fletcher  v.  Fuller,  97. 

V.  Prestwood,  231. 

V.  Railroad  Co.,  138. 
Floyd  V.  Ricks,  45,  48. 

V.  State,  298. 
Flynn  v.  Coffee.  87. 
Foley  V.  Ray,  30. 
Folher  v.    Chadd.  225. 
Follansbee  v.  Walker,  364. 
Fonseca  v.  Steamship  Co..  106. 
Foot  V.  Bentley,  429. 
Ford  V.  Cunningham,  303,  434. 

V.  Ford.  210. 

V.  Hopkins,  302. 

V.  Simmons,  71. 
Forsythe  v.  Hardin,  443. 

V.  Xorcross,  305. 
Fortunato  v.  New  York.  295. 
Ft.    Worth    &    D.    C.    R.    Co.    v. 

Thompson,    235. 
Foss  V.  Railroad  Co.,  168. 
Foster  v.  Earl  of  Derby,  289. 

V.  Murphy  &  Co.,  216. 

V.  People,  377. 

V.  Pierce,  376. 

V.  Sinkler,   303,  314. 
Fourth  Nat.  Bank  v.  Francklyn, 

36. 
Fowle  V.  Alexandria,  471. 
Fox  V.  Color  Works,  237. 

V.  Reil,   443. 
Foye  V.  Patch.  250,  446. 
Framingham   Mfg.    Co.    v.    Barn- 
ard, 316. 
Francis  v.  Wilkinson,  103. 
Frank  v.  Berry.  249,  250. 

V.  Gump,  51. 
Franklin  v.  Franklin,  170. 
Fraser  v.  Hunter.  3.38. 
Frauenthal  v.  Bridgeman,  453. 
Frederick  v.  State,  162. 
Free  v.  Buckingham,  355. 
French  v.  Sale,  205. 

V.  State   Senate,   24. 
Friend  v.  Hamill,  190. 
Friend's  Case,  In  re,  255. 


Frith  V.  Frith.  424. 
Fry  V.  Stowers,  336. 

V.  Wood,    291. 
Pudge   V.    Marquell,   122,   124. 
Fulkerson  v.  Holmes,  272. 
Fuller  V.  Dean,  212. 

V.  Worth,  67. 
Fulton  V.  Bank,  408. 
Fulton's  Estate,  In  re,  305. 
Funderbrug  v.  State,  190. 
Fyffe  y.  Fyffe,  130. 

G 

Gaar,  Scott  &  Co.  v.  Hill.  455. 
Gaffney  v.  People,  405,  412. 
Gage  V.  Campbell,  432. 
Gallager  v.  Proctor,  105. 
Gallagher  v.   State,  34. 
Galveston,  H.  &  S.  A.  R.  Co.  T. 

Green,  140.  141. 
Ganahl  v.  Shore,  307. 
Garber  v.  Blatchley,  81. 
Gardiner  v.   McDouogh,   462. 
Gardner  v.  Brookline,  173. 

V.  Frieze,   263. 

V.  Granniss,  441.  442. 
Garrahy  v.  Green,  130. 
Garrett  v.  State,  164. 
Garrison  v.  Blanton,  248. 
Garth  v.  Caldwell.  48. 
Garvik  v.  Railroad  Co.,  417. 
Gates  V.  Fleischer,  243. 

V.  Newman,  110. 

V.  People,  162. 
Gay  V.  Bowen,  135. 
Gebhart  v.  Burkett,  195. 
Geist  V.  Railroad.  50. 
Gelott  V.  Goodspeed.  438. 
George  v.  Fisk,  295. 

V.  Jesson,   86. 
Gerniania  Ins.  Co.  v.  Railroad  Co., 

106. 
Gessell  v.  Baugher.  120. 
Gethin  v.  Walker.  426. 
Getty  V.  Hamlin.  179. 
Gibbs  V.  Manchester,  35. 
Gibney  v.  Marcbay,  131. 


486 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Gibson  v.  Brown,  108. 
V.  Buckuer,  39. 
V.  Hunter,  469,  470,  471. 
V.  Sutton,    135. 
Gilbert  v.  Mfg.  Co.,  33. 

V.  Ross,  430,  432. 
Gilmanton  v.  Ham,  451. 
Gilmor's  Estate.  459. 
Giordano  v.  Granite  Co.,  266. 
Givens   v.   Bradley,    197,   202. 
Gleadow  v.  Atkin,  317. 
Glisson  V.  Light  Co..  348. 
Glover  v.   Patten,   383. 
Glynn  v.  Bank,  301,  317. 
Godain  v.  Bank,  120. 
Godfrey  v.  Godfrey,  43. 

V.  Phillips,  452. 
Goersen  v.  Com.,  191. 
Gooch  V.  Faucett.  110. 
Goodlett  V.  Kelly,   289. 
Goodrich  v.  Tracy.  138. 

V.  Weston,  434. 
Goods  of  Cadge,  In  re.  461. 
Goods  of  Selwyu,  In  re,  115. 
Goodwin  v.  Garr,  90. 
V.  Jack.  269. 
V.  Society,  136. 
Goodwin  Gas  Stove  &  Meter  Co.'s 

Appeal,  384. 
Gord  V.  Needs,  463. 
Gordon  v.  Com..  363. 

V.  State,  99. 
Gore  V.  Curtis,  207. 
Gorton  v.  Hadsell.  60. 
Goss  V.  Lord  Nugent.  456. 
Gough  V.  St.  John.  194.  197,  202. 
Gould  V.  Crawford,  300. 
V.  Lakes,  268. 
V.  Metal    Co.,    456. 
Grace  v.  Browne,  342. 
V.  McArthur.    190. 
Graham  v.  State.  214. 
Grainger  v.  Still,  229. 
Grand     Lodge,     Brotherhood     of 
Railroad     Trainmen,     v.     Ran- 
dolph, 417. 
Grand  Trunk  R.  Co.  v.  Cummings, 
473. 


Grand  Trunk  R.  Co.  v.  Richard- 
son, 177,  184,  185. 
Graton  v.  Holliday-Klotz  Co.,  431. 
Gratz  V.  Beates,  130. 
Graves  v.  Colwell,  84. 
V.  State,  103. 
V.  U.  S.,  79. 
Greasons  v.  Davis,  232. 
Greathouse  Case,  42. 
Greenfield  v.  People,  222. 
Greenough  v.  Gaskell,  385. 
Green  v.  Railroad  Co.,  101. 
Green  Ridge  R.  Co.  v.  Brinkman, 
184,  185. 

Gregg  V.  State,  389. 

Gregory  v.  Wendell,  50. 

Griesheimer   v.   Taneubaum,   304, 
308.  ■ 

Griffin  v.  State,  199,  251. 

Griffith  V.  Williams,  449. 

Grigsby  v.  Water  Co..  231. 

Grimm    v.    Hamel,    294. 

Griswold  v.  Pitcaim,  41. 

Grimenberg  v.  Smith,  138. 

Guhl    V.    Whitcomb,   424. 

Gulf,  C.  &  S.  F.  R.  Co.  V.  John- 
son, 409. 
V.  Rowland,  180. 

Gulf  &  S.  I.  R.  Co.  V.  Adams.  40. 

Gulick  V.  Gulick,  384. 

Gullett  V.  Otey,  132. 

Gurney  v.  Howe,  341. 

Gutridge  v.  Railroad  Co.,  223. 

Gutterson  v.  :Morse,  121,  410. 

Guy  V.  Mead,  315. 

H 

Haas  V.  Society,  138. 
Hackett  v.  People,  329. 
Hagan  v.  Insurance  Co.,  460. 
Hagar  v.  Norton,  259. 
Hall,  Matter  of,  40. 

V.  Com.,  325. 

V.  Costello,  232. 

V.  Glidden,   304. 

V.  Houghton,  401. 

V.  Mayo,  335,  338. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


487 


Hall  V.  Perry,  103,  246. 

V.  Plielps,  443. 

V.  Railroad  Co.,  401,  402. 

V.  Rankin,  240,  242. 
Halsey  v.  Sinsebaugh,  396. 
Halvorsen  v.  Lumber  Co.,  321. 
Hamershiag  v.   Duryea,   269, 
Hamilton  v.  Insurance  Co.,  55. 

V.  People,   210,   211,    214. 

V.  Railroad    Co.,    168. 

V.  Smith,   269. 

V.  State,    197. 

V.  Summers,    135. 
Hammett  v.  Railroad  Co.,  35. 
Hammond  v.  Varian,  249,  447. 
Hancock   v.    Insurance  Co.,   88. 
Hand  v.  Brookline,  243. 
Handy  v.  State,  266. 
Handy  &  Co.  v.  Smith,  306. 
Hanes   v.    Herman,    52. 
Hanlon  v.  Doherty,  384. 
Hannabalson  v.  Sessions,  .346. 
Hanriot  v.   Sherwood,  250. 
Hanselman  v.  Dovel,  357. 
Hardiman  v.  Brown,  240. 
Hardin  v.  Railroad  Co.,  261. 
Hardy  v.  Merrill,  103,  247. 
Harland  v.  Eastman,  273. 
Harlan  v.  Howard,  269,  441,  442. 
Harless  v.  Harless,  137. 
Harriman  v.  Brown,  320,  337. 

V.  Railroad   Co.,   81. 
Harrington's  Estate,  In  re,  111. 
Harris  v.  Quincy,  423. 
Harrison  v.  Blades,  320. 
Harry,  The,  138. 
Hart  V.  Bridge  Co.,  411. 

V.  Kendall.  318. 

V.  Railroad  Co.,  179. 
Harter  v.  Railroad  Co..  180. 
Hartford  v.  Palmer,  360. 
Hartford  Bridge  Co.  v.  Granger. 

142. 
Hartford  Life  &  Annuity  Ins.  Co. 

V.  Gray,  106. 
Hartness  v.  Brown,  385. 
Hartranft,    Appeal    of,    367,    372, 
373. 


Haseltine  v.  Railroad,  184. 
Hastings  v.  Rider,  248. 

V.  Stetson,  201. 
Hatch  V.   Sigman,  268. 
Hatfield  v.  Lasher,  208. 
Hathaway's   Adm'r   v.    Insurance 

Co.,  247. 
Hauenstein  v.  Lynham,  42. 
Hauns   v.  Asylum,   27. 
Havens  v.  Land  Co.,  269. 
Haven  v.  Wendell,  394. 
Hawes  v.  Draeger,  91. 

V.  State,  190. 
Hawkins  v.  Grimes,  103. 
Haycock  v.    Greup,   449. 
Hayden  v.  Goodnow,  461. 
Hayes  v.   Pitts-Kimball   Co.,  259. 
Hays  V.  Millar,  202. 
Hayward  v.  People,  409. 
Hazleton  v.  Union  Bank,  450. 
Heald  v.  Thing,  239. 
Hebb  V.  Welch,  403. 
Hebbard  v.   Haughian,   383. 
Heckman  v.  Heckman,  357. 
Hedden  v.  Roberts,  95. 
Hedderich  v.  State,  49. 
Heidenheimer  v.  Jolinson,  310. 
Heinemann  v.  Heai'd,  66,  71. 
Heldt  V.  State,  309. 
Helm  V.  State.  318. 

v.  Steele,  138. 
Helton  V.  Asher,   342. 
Hemenway  v.  Smith,  382. 
Hemingway  v.  State,  114. 
Heminway    &    Sons    Silk    Co.    T. 

Porter,  288. 
Henderson  v.   Coke  Co.,  94. 

V.  Railroad  Co..  184. 
Hendle  v.   Geiler,  121. 
Hendrickson  v.  People,  160. 
Henry  v.  Oves.  314. 
Henshaw  v.  Davis,  305. 
Hepler  v.  Bank,  296. 
Herring  v.  Goodson,  91. 

V.  Skaggs,  399. 
Herster  v.  Herster.  262. 
Ilibbard  v.  Baker.  247. 
Hickey  v.  Hinsdale,  121. 


488 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Hicks  V.  State,  190. 
Higbee  v.  Dresser,  363,  382, 
Higham  v.  Ridgway,  322,  323. 
High's  Heirs  v.  Pancake,  339. 
Hildreth  v.  AldrieU,  401. 
Hill  V.  Blake,  457. 

V.  Crosby,  97. 

V.  North,  258. 

V.  Packard,  430. 

V.  Railroad  Co.,  227. 

V.  State,  159,  324,  333. 
Hill  Estate  Co.  v.  Whittlesey,  53. 
Hills  V.  Barnes,  461, 

V.  Ludwig,  130. 

V.  State,  366,  376. 
Hiltabiddle  v.  State,  99. 
Hilton  V.  Bender,  113. 

V.  Roylance,  40. 
Hinckley  v.  Thatcher,  463. 
Hinde  v.  Vattier,  38. 
Hingeston  v.  Kelly,  76. 
Hinkley  y.  Davis,  316. 
Hinshaw  v.  State,  363. 
Hiscocks  V.  Hiscocks,  464. 
Hoag  V.  Wright,  359. 
Hodge  V.  Palms,  270. 
Hodges  V.  Coleman,  266. 

V.  Percival,  179. 
Hogg  V.  Orgill,  135. 
Holbrook  v.   Gay,  306, 
Holcomb  V.  Harris,  .365. 

V.  Holcomb,  360. 
Holcombe  v.  Hewson,  180. 
Holmes  v.  Jones,  207. 

V.  Roper,  319. 

V.  Turner's    Falls    Co.,     131, 
336.  339. 
Holsey  v.  State,  206. 
Holtz  V.   State,  144. 
Home  Ben.  Ass'n  v.  Sargent,  67. 
Homer  v.  Cilley,  442. 
Hook  V.  Stovall,  237. 
Hooper  v.  Moore,  233. 

V.  Railroad  Co.,  290. 
Hoover  v.  Gehr,  304. 
Hopewell  v.  De  Pinna,  88. 
Hopkins  v.  Megquire,  445. 
Hoppe  V.  Byers,  268. 


Hopper  V.  Com.,  398. 
Hopt  V.  People,  151. 
Hccan  v.  Byrnes,  137. 
Horn  V.  State,  73. 
Hornbeck  v.  State,  349. 
Home  V.  Williams,  296. 
Horst  V.  Lewis,  226,  344, 
Horstman  v.  Kaufman,  378. 
Hosford  V.  Rowe,  318. 
Hosley  v.  Brooks,  200. 
Hot    Springs    St.    R.   Co.   v.    Hil- 
dreth. 346. 
Houghtaling  v.  Kelderhouse,  193, 
194. 

V.  Kilderhouse,   215. 
Houghton  V.  Jones,  408. 
Houlton.  V.   Manteuftel,  281. 
House  V.  Cessna,  121. 
Houston  &  T.  C.  R.  Co.  v.  Smith, 

218,  288. 
Hovey  v.  Sebring,  90. 
Howard  v.   Bank,  420. 

V.  Carter,   247. 

V.  State,  88.  401. 
Howell  V.  Huyck,  432. 
Hoxsie  V.  Lumber  Co.,  230. 
Hubbard  v.  F^^'^bard,  389. 

V.  Lees,  272. 

V.  Moore,    121. 

V.  Railroad  Co.,  183. 
Huber  Mfg.  Co.  v.  Claudel,  447. 
Huckins  v.  Insurance  Co.,  399. 
Huff  v.  Bennett,  294.  365,  392. 
Hughes  V.  Clark.  289. 

V.  Railroad  Co.,  360, 
Huidekoper  v.   Cotton,  362, 
Hulett's  Estate.  In  re.  123, 
Hull   V.    Augustine,    111. 

V.  Webl).  38. 
Humes  v.  O'Bryan,  318. 
Humphrey   v.   Burnside,   52. 

V.  Humphrey,    193,   197. 

V.  Smith,    132. 
Humphries  v.  Parker,  391, 
Ilunnicutt  v.  Peyton,  339. 
Hunt   V.    Boston,    402. 

V.  Gaslight   Co.,   181,  243. 

V.  Graham,  101, 


CASES   CITED. 
[The  figures  refer  to  pages.] 


489 


Hunter  v.  Davis,  217. 

V.  Railroad  Co.,  48. 

V.  State,  343. 
Hurl  but  V.  Meeker,  408. 
Huston  V.  Harrison,  66. 
Hutclieis  V.  Railroad  Co.,  345. 
Hutcliiugs  V.  Corgan,  289. 
Hutcliins   V.    Hutcbins,   319. 
Hj'de  V.   Swautou,  422,  423. 
Hynes  v.  McDermott,  448,  449. 

I 

Idaho   Forwarding   Co.   v.   Insur- 
ance Co.,   137. 
Illinois    Cent.    R.   Co.    v.   People, 
227. 
V.  Prickett,   195. 
Indiana    Mut.    Building    &    Loan 

Ass'n  V.  Paxton,  38. 
Indianapolis  St  R.  Co.  v.  Haver- 
stick,  218. 
V.  Sclimidt,  347. 
Indianapolis   &   St.   L.   R.   Co.   v. 

Stout,  289. 
Ingraham  v.  Hutchinson,  97. 
Ingram  v.  Wyatt,  77. 
Inhabitants  of  Abington  v.  North 

Bridgewater,  338. 
Inhabitants  of  Augusta  v.  Wind- 
sor, 312,  314. 
Inhabitants  of  North  Brookfield  v. 

Warren,  272,  280. 
Inhabitants  of    Phillips    v.    King- 
field,  210. 
Inhabitants  of    Woburn    v.    Hen- 

shaw,  386. 
Inman  v.  Foster,  208. 
Insurance  Co.  v.   :Mosley,  344. 
International   &  G.   N.  R.   Co.  v. 
Hall,  35. 
V.  Klaus,  224. 
V.  MuUiken,   127. 
Ireland  v.  Spickard,  465. 
Iroquois  Furnace  Co.  v.  McCrea, 

422. 
Ivy  v.  Yancey.  114. 


J 


Jack  V.  Ass'n,  345. 
Jackson  v.  Blanshan,  442. 
V.  Boneham,    272,    276. 
V.  Crilly,  287. 
V.  Crissey,  290. 
V.  Dunton,  275. 
V.  Gager,    437. 
V.  Kingsley,  443. 
T.  Lawson,  289. 
V.  Thomason,  403. 
Jacksonville,  T.  &  K.  W.  R.  Co.  v. 

Mfg.  Co.,  185. 
Jacob  V.  Lindsay,  428. 
Jacobs  V.  Cohn,  306. 

V.  Whitcomb,  258.  260. 
James  v.  Chalmers,  90. 
Jarvis  v.  Robinson,  37. 
Jefferds  v.  People,  158. 
Jefferson   Ice   Co.   v.   Zwicokoski, 

416. 
Jenkins  v.  Beachy,  217. 
Jennings  v.  Albion.  179. 
Jensen  v.  McCorkell,  95. 
Jersey  City  v.  Railroad  Co..  35. 
Jessup  V.  Cook,  298. 
Jewell  V.  Pare,  61. 
Jewell's  Lessee  v.  Jewell,  273. 
J.   G.    Shaw   Blank   Book   Co.   v. 

Maybell,  455. 
John  O'Brien  Lumber  Co.  v.  Wil- 
kinson, 21. 
Johnson   v.   Anderson,  228. 
V.  Burks,  319. 
v.  Cole,  317. 
V.  Culver,  247. 

V.  Duke  of  Marlborough,  460. 
v.  Highland.    216. 
V.  Lawson,  273. 
V.  Merithew.  115. 
V.  People,  200. 
V.  Powers.  297. 
V.  Russell,   121. 
V.  State.  .326. 
Johnson's  Will.  In  re.  268. 
I  Jones  V.  Cooper.   121. 
I         V.  Crowley,  459. 


490 


CASKS   CITED. 
[The  figures  refer  to  pages.] 


V. 
V. 
V. 
V. 


Jones  V.  Fuller.  224. 
V,  Hays,    36. 
V.  Howard,  323. 
V.  Ireland,  471. 
V.  Jones,  265,  451. 
V.  Packet  Co.,  275. 
V.  Railroad  Co.,  63,  243. 
V.  Ricketts,  106. 
Roberts,  437. 
State,  214,  260.  ,329.  449. 
Townsend's   Adm'x,   257. 
AVhite,  237. 
Jordan  v.  Duke,  419. 
V.  Hubbard,  138. 
Joseph  B.  Thomas.  The.  81. 
Joyce  V.  Parkhurst,  237. 

K 

Kair,  Ex  parte,  23,  48. 
Kaiser  v.  Alexander,  308. 
Kansas   City   v.   Butt,   49. 

V.  Scarritt,  269. 
Kansas  City,  Ft.  S.  &  G.  R.  Co.  v. 

Foster,  472. 
Kansas  City,   M.   &  B.   R.   Co.   v. 

Chiles,  455. 
Kansas   City    Star   Co.    v.    Ware- 
house, 120. 
Kansas   Pac.   R.   Co.   v.   Whipple, 

222. 
Kanter,   In  re,  374. 
Kaut  V.  Kessler.  385. 
Kearney  v.  New  York,  431. 

V.  Rex,  50. 
Keeling  v.   Ball,   437. 
Keitli  V.  Kibbe,  oO^. 

V.  Lothrop.  2iC',  445,  446. 
Kell  V.  Charmer.  462. 
Keller  v.  Webb,  462. 
Kelley  v.  People,  163. 
Kelly  V.  Drew,  375. 

V.  State,   155,  213. 
Kelly's  Heirs  v.  McGuire,  272. 
Kelsea    v.    Flotcher,   395. 
Kelton  V.  Hill.  308. 
Kendall  v.  Browuson,  67. 
V.  Lawrence,    136. 


Kendrick  v.   State,  298. 
Keniston  v.  Rowe,  451. 
Kennebec  Co.  v.  Banking  Co.,  4.56. 
Kennedy  v.   Doyle,  274,  312,  314, 
341. 
V.  Gifford,  212. 
Kennedy's  Estate,  In  re,  401. 
Kernin  v.  Hill,  449. 
Kerr  v.  Freeman,  67. 

V.    Modern  Woodmen  of  Amer* 
lea,    346. 
Kershaw  v.  Wright,  236. 
Kess&l  V.  Albetis,  37. 
Kessler  v.  Best,  373. 
Keyes  v.  State,  370. 
Kibler  v.  Caplis,  174. 
V.  Mcllwaiu,  408. 
Kidder  v.   Dunstable.  183. 
Kilgore  v.   State,  .331. 
Kilpatrick  v.  Com.,  333. 
King  V.  Colvin.  67. 
V.  Donahue,  450. 
V.  State,  103.  i.)_^,  331. 
V.  Watkius,  271. 
Kingsbury  v.  Moses,  428. 
Kinney  v.  Farnsworth,  336. 
Kirby  v.  Insurance  Co.,  227. 
Kirby  Lumber  Co.  v.  C.  R.  Cum- 

mings  Co.,  265. 
Ivirkpatrick  v.  Insurance  Co.,  82. 
Kleffmann  v.  Railroad  Co.,  48. 
Kneipper   v.    Richards,   4.56. 
Knight  V.  Foster,  211. 
V.  House.  211. 
V.    Nepean,   88. 
Knights  Templars'  &  Masons'  Life 
Indemnity  Co.  v.  Crayton,  342. 
Knode  v.  Williamson.  204. 
Knorr  v.  Raymond,  138. 
Knott  V.   Peterson,  342. 
Knowles  v.  People,  380. 
Knowltou  V.  Railroad  Co.,  52. 
Knox's  Will.  In  re,  104. 
Knoxville.   C.   G.   &  L.   R.   Co.   v. 

Wyrick.    168. 
Kokes  V.  State,  4'2. 
Konip  V.  Raymond,  465. 
Koon  V.  Railroad  Co.,  419. 


CASES   CITED. 
[The  figures  refer  to  pages.] 

Koons   V.    State,   449. 
Kotwitz  V.  Wright,  305. 
Krager  v.  Pierce,  408. 
Kribs  V.  Jones.  457. 
Krueger  v.   Mfg.  Co.,  187. 
Kuhn  V,  Railroad  Co.,  237. 
Kuhns  V.  Railroad  Co.,  179. 
Kurtz  V.  Hibner,  464. 


491 


Laclede  Bank  v.  Keeler,  211. 
Laidlaw  v.  Sage,  125. 
Lake  Erie  &  \y.  R.  Co.  v.  Rooker, 
138. 
V.  Wilson,   419.   422,   424. 


Ledford  v.  Euierson,  427. 
Lee  V.  Bank,  49. 

V.  State.  360. 
Lehman  v.  McQueen,  69. 
Leighton  v.  Mon-ill,  100. 
Leuig  V.  Eisenhart,  67. 
Lenox  v.  Fuller,  211. 
Leovy  v.  U.  S.,  48. 
Leport  V.  Todd,  108. 
Levison  v.  State,  160. 
Lewis  v.  Crouch,  171. 

V.  Price,  85. 

Y.  State,  325. 
Lidwinopsky's  Petition,  48. 
Lilly  V.  People,  102. 

V.  Person,  4{50. 


Lake  Ontario  Nat.  Bank  v.  Jud-  !  Lime  Rock  Bank  v.  Hewett,  296. 
son,  68,  69. 

Lake  Shore  &  M.  S.  R.  Co.  v.  Tee- 
ters, 245. 

Lake  St.  Elevated  R.  R.  v.  Bur- 
gess, 420. 

Lander  v.  People,  314. 

Landis  v.  Turner,  304. 

Landon  v.  Insui'ance  Co.,  260. 

Lane  v.  Bryant,  127. 
V.  De  Bode,  295. 
V.  Moore,  261. 
V.  Railroad  Co.,  178. 

Langley  v.  Andrews,  135. 

Lanier,  Hamilton  &  Co.  v.  Heb- 
ard,  276. 

Laros  v.  Com.,  \62. 

La  Rue  v.  Insurance  Co..  23,  43, 
52. 

Lassoue  v.  Railroad  Co.,  303,  30^4. 

Latham  v.  Shipley.  264. 

Lathrop  v.  Adkisson,  295. 

Laturen  v.  Drug  Co..  47. 

Laubheimer  v.  Naill,  72. 

Laurent  v.  A'aughan,  265. 

Lawder  v.  Hinderson,  408. 

Lawler  v.  Mcl'heeters.  412. 

Lawrence  v.   Kimball,  320. 
V.  Tenuant.  336. 

Leach  v.  Hall,  79,  117. 

Leckey  v.  Bloser,  202.  209. 

Lederman    v.    Railroad    Co.,    179. 


Lincoln  v.  Battelle,  41. 

V.  Railroad  Co.,  243. 
Lindauer  v.  Teeter,  362. 
Liudsey  v.   State,  190. 
Line  v.  Hope,  237. 
Liverpool  &  G.  W.  S.  Co.  v.  In- 
surance Co.,  232. 
Livingston  v.  Arnoux,  300,  323. 

V.  Com.,  388. 

V.  Cox,  294. 

v.  Kiersted,  359. 
Locklayer  v.  Locklayer,  272,  318. 
Loeb  V.  Richardson,  45,  48. 
Loloff  V.  Sterling,  265. 
Lombar  v.  East  Tawas,  179. 
Long  V.  Colton.  339. 

v.  Long,  129. 

V.  State,  199. 
Longabaugh  v.  Railroad  Co.,  184. 
Loomis  v.  Loomis,   135. 

V.  Railroad  Co.,  138. 

V.  Wadhams,   126. 
Lord  Morely's  Case,  82,  83. 
Lorenzana  v.  Camarillo,  121. 
Lothrop  V.  Roberts,  376. 
Louisville,  N.  A.  &  0.  R.  Co.  v. 
Richardson.   213. 

V.  Wood.  240,  242. 
Ixjuisville  &  N.  R.  Co.  v.  Binion, 
76. 

V.  Brinkerhoff,  43. 


492 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Louisville  &  N.  R.  Co.  v.  Frazee, 

342. 
Louisville  &  N.  T.  Co.  v.  Jacobs, 

266. 
Low  V.  Hansou,  42. 

V.  Mitchell,   197. 
Lowe  V.  Dalrymple,  144. 

V.  State,   162. 
Lowry  v.  Moss,  320. 
Low's  Case,  363. 
Luce  V.  Insurance  Co.,  227. 
Ludwig  V.  Blackshere,  127. 
Luke  V.  Calhoun  Co.,  47. 
Lund  V.  Tyngsboi'ough,  346. 
Lundvick  v.  Insurance  Co.,  174. 
Lutterell  v.   Reynell,  255,  256. 
Lyman  v.  Philadelphia,  210. 
Lynch  v.  Clerke,  341,  425.  429. 

V.  U.  S.,  229,  234. 
Lynchburg  Tel.  Co.  v.  Bokher,  139. 
Lynn  v.  Beam,  465. 
Lyon  v.  Lyman,  449. 


M 


McAdams   Ex'rs  v.   Stilwell,   299. 
McAdory  v.   State,  160. 
McBrayer  v.  Walker,  443. 
^NlcCabe  v.  Traction  Co.,  221. 
McCall  V.  U.  S.,  334. 
McCamant  v.  Roberts,  412. 
McCartee  v.  Camel,  87,  88. 
McCarthy  v.  Whitcomb,  111. 
McCarver  v.  Herzberg,  37. 
McCaslin  Macb,  Co.  v.  McCaslin, 

237. 
McCausland  v.  Fleming,  336. 
McChesney  v.  Chicago,  49. 
McClain  v.  Williams,  39. 
McCollum  V.  State,  282. 
McCormick  v.  Railroad  Co.,  222. 
McCowen    v.    Railroad    Co.,    215. 
McCoy's  Will,  In  re,  359. 
McCrary  v.  Railroad  Co.,  265. 
McDaniel  v.  State,  198,  400. 
McDonald  v.  Com.,  197. 

V.  Savoy,   195,   202. 

V.  Wesendonck,  323. 


McGoldrick     v.    Traphagen,    304, 

306. 
McGovern  v.  Smith,  291,  292. 
jMcGregor  v.  Wait,  443. 
McGrourty  v.  Coal  Co.,  245. 
Machin  v.  Trust  Co.,  455. 
McHugh  V.  State,  3S9. 
Mcintosh  V.  Lee,  44. 
V.  Mcintosh,  390. 
V.  Pueblo,  35, 
Mclntyre  v.  Railroad  Co.,  297. 
McKee  v.  Nelson,  222. 
MeKeone  v.   Barnes,  449. 
McKillop  V.  Railroad  Co.,  221. 
McKinnon  v.  Bliss,  282,  283,  339, 

426. 
McKinny  v.  State,  99. 
McKivitt  V.  Cone,  395. 
McKnight  v.  Railroad  Co.,  417. 
McLeary  v.  Nox'ment.  239. 
McMahon  v.  Dubuque,  417. 
McMaster  v.   Insm'ance  Co.,  459. 
McMillen  v.  Andrews,  365. 
McMurrin  v.  Rigby,  349. 
McNaghten's  Case,  243. 
McPeck's    Heirs    v.    G  r  a  h  a  m's 

Heirs,  108. 
McPhelemy  v.  McPhelemy,  428. 
Magill  V.  Kaufeman,  291. 
Mahoney  v.  Aurrecochea,  48. 

V.  Belford,  212. 
Malcomson  v.  O'Dea,  209,  270. 
Malone  v.  Dougherty,  457. 
Manigold  v.  Traction  Co.,  105. 
Mann  v.  Carey,  429. 
Manning    v.    School   Dist.    No.    6, 

311. 
Many  v.  Jagger,  130. 
Mapes  v.  Weeks,  214. 
INIaraman  v.  Troutman,  131. 
Marcy  v.   Stone,  320,  321. 
Marden  v.  Bostoii,  SG. 
Marsh  v.  Collnett,  429. 

V.  Mitchell,  138. 
Marshall  v.  Hancock,  289. 
V.  Railroad   Co.,   327. 
Marshall  Livery  Co.  v.  McKelvy, 
71. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


493 


Martin  v.  Cope.  293,  297. 
V.  Good,  304. 
V.  Hardesty,  204. 
V.  Ragsdale,  2'M. 
Martindale  v.  Falkner,   116. 
Martyn  v.  Curtis,  339. 
Mask  V.  State,  408. 
Mason  v.  Cable  Co.,  455. 
V.  Fuller,   274. 
V.  Libbey,  431. 
Massee-Felton  Lumber  Co.  v.  Sir- 
mans,  323. 
Massey  v.  Allen,  312. 
Mathews  v.  Railroad  Co.,  260. 
Matson  v.  Buck,  212. 
Matteson  v.  Hartmann,  130. 
Matthews  v.  Huntley,  193,  215. 
Matthis  V.  State,  412. 
Mattiee  v.  Allen,   404. 
Mattingly  v.  Shortell,  195.  309. 
Mattox  V.  U.  S.,  3G3,  412. 
Maugham  v.   Hubbard,  394. 
Mauri  v.  Heffernan.  431. 
Maxham  v.  Place,  384. 
Maxwell  v.  State,  102. 
Maxwell's  Ex'rs  v.  Wilkinson,  390. 
May  V.  Bradlee,  246. 

V.  Taylor,   136. 
Mayberry  v.  Beck,  463. 
Mayer  v.  People,   190. 
Mayes  v.  Railroad  Co.,  33. 
Maynard  v.  Buck,  176,  178. 
V.  Navigation    Co.,   422, 
Mayo  V.  Mayo,  377. 
Mayor,  etc.,  of  New  York  v.  Rail- 
road Co..  313,  315. 
Mays  V.  Jennings,  49. 
Mears  v.  Insurance  Co.,  47. 
Medlicot  v.  .Toyner,  431. 
Melby  v.  Osborne,  250. 
Melhuish  v.  Collier.  401. 
Melvin  v.  Whiting,  280. 
Menage  v.  Rosenthal,  458. 
Mendenhall  v.  Ulrich.  455. 
Mercer's  Adm'r  v.  Mackin,  268. 
Merchants'  Exch.  Co.  v.  Sanders, 

95. 
Merchants'  Nat.  Bank  v.  Hall,  51 


Merkele  v.  Boidleman,  131. 
Merrill  v.  Dawson,  36. 

V.  Railroad  Co.,  395. 
Metheny  v.  Bohn,  272. 
Metropolitan   R.   Co.   v.   Jackson, 

63. 
Metzger  v.  Roberts,  455. 
Meurer  v.  Railroad  Co.,  112. 
Meyer  v.    Foster,   294. 
Middleton  v.  Melton,  316. 
Miles    V.    Andrews.    120. 
V.  Loomis,  250.  4.")0. 
V.  Woodward,  128. 
Miller  v.   Canton,  217. 
V.  Curtis,   207. 
V.  Dumon,  422. 
V.  McQuerry,  36. 
V.  New  York,  422. 
V.  Shay,  306. 
V.  Smith,   237,  240,   245. 
V.  State,  189,  333. 
V.  Watson,  112. 
:\rilliken  v.  IMarlin.  460. 
Mills  V.   Oddy.   432. 

V.  Railroad  Co.,  417. 
:Miltou   V.   Hunter,   135,  268. 
Milwaukee    &    .Nt.    P.    R.    Co.    v. 

Kellogg,  227. 
Mims  V.   Swartz,  37. 
Mineral  R.  &  M.  Co.  v.  Auten.  269. 
Mineral    Point    R.    Co,    v.    Keep. 

293,  294. 
Mission  of  Immaculate  Virgin  v. 

Cronin,  97. 
Mississippi  Glass  Co.  v.  Franzer, 

401. 
Mississippi  Lumber  &  Coal  Co.  v. 

Kelly,  450. 
Missouri,   K,  &  T.   R.   Co.   v.   Al- 
len. 247. 
Missouri  Pac.  R.  Co.   v.  Hennes- 
sey,  179. 
V.  Moffatt,    196. 
Mitchell  V.  Work,  203. 
Mockabee  v.   Comm.,  331. 
?^Iofflt  V.  Witherspoon,  272. 
Moline-Milburn   Co.    v.   Franklin, 
191. 


494 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Molloy  V.  Express  Co.,  291. 
Monarch  Mfg.  Co.  v.  Railroad  Co., 

341. 
Money  v.  Turnipseed,  33. 
Monroe  v.  Napier,  130. 
Montana  R.   Co.  v.  Warren,  228. 
Montgomery  v.   Bevans,   89. 

V.  Deeley,  42. 

V.  Pickering,  386. 
Montgomery  County  v.  Bean,  304. 
Montgomery  St.  R.  Co.  v.  Shanks, 

347. 
Moody  V.  Rowell.  2.50,  399,  411. 
Mooney  v.  Olsen,  262. 
Moore  v.  Cooley,  269. 

V.  Crosthwait,  146. 

V.  Luce,    96. 

V.  Railroad  Co.,  48. 

V.  State,  330,  375. 

V.  U.  S.,  2.52. 
Morehead  v.   State,   114. 
Morehouse  v.  Mathews,  244. 
Moreland  v.  Mitchell  Co.,  237. 
Morgan  v.  Barnhill,  194. 

V.  Burrows,  463. 

V.  Insurance  Co.,  405. 

V.  Kendall,   379. 

V.  State,  325. 
Morrell  v.  Cawley,  121. 
Morris  v.  Davidson,  37. 

V.  East  Flaven,  202. 

V.  Edwards.  2S3. 

V.  Guffey,  404. 

V.  Lessee  of  Harmer's  Heirs, 
283. 

V.  Norton,  123. 
Morrison  Mfg.  Co.  v.  Bryson,  4G2. 
Morrow  v.  Com.,  426. 
Morss  V.  Morss,  365. 
Morton  v.  Folger,  .336. 
Mosley  v.  Insurance  Co.,  195. 
Moulton  V.  McOwen,  237. 
Mowry  v.  Chase,  232.  237. 
Mudd    V.    Suckermore,    250,    251, 

252. 
Mueller  v.   State,  .52. 
JNIuldowney  v.  Railroad  Co.,  227, 
231. 


Mullan  V.  State,  24,  29. 
Muller  V.  Ass'n,  409,  410. 
Mullins  V.    Shaw,  453. 
Munshower  v.  State,  51. 
Murdock    v.    Waterman,    136. 
Murphy  v.  Collins,  112. 

V.  People,  59. 

V.  State,    164. 
Muser  v.  Magone,  264. 
Musser  v.  State,  144. 

V.  Stauffer,   110. 
Mutual  Life  Ins.  Co.  v.  Hillmon, 
260. 

V.  Logan,    317. 
Myers  v.  Mathis,  43. 

V.  Railroad  Co.,  38. 

V.  Sari.   458. 
Myers'  Will,  In  re,  365. 


N 


Nalley  v.  Carpet  Co.,  179. 
Nashua  Sav.   Bank  v.  Land  Co., 

343. 
National    Biscuit    Co.    v.    Nolan, 

227. 
National   Gas   Light  &   Fuel   Co. 

V.   Miethke,   226. 
National    Masonic   Ace.    Ass'n   v. 

Burr,  95. 
Naul  V.  Naul,  1.35. 
Nebonne  v.  Railroad  Co.,  418. 
Neel   V.   Potter,   263. 
Neely  v.  Neely,  437. 
Nelms  V.  State,  249,  446. 
Nelson  v.  Insu'-9uce  Co.,  .59. 
Nepean  v.  Doe,  88. 
Newcomb's  Ex'r  v.  Newcomb,  247. 
Newell  V.  Homer,  433. 

V.  Nichols,  11.5. 
New  England  Glass  Co.  v.  Lovell, 

226. 
Newhall  v.  Appleton,  170,  4.58. 
New   Hampshire  Fire  Ins.  Co.  v. 

Ilea  ley,  363. 
New  Haven  &  Northampton  Co.  v. 

Goodwin,   .306. 
Newman  v.  Newman,  3C4. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


^95 


Newsom  v.  Luster,  439. 

New  York  Guaranty  &  Indemnity 

Co.  V.  Gleasou,  144. 
New  York,  L.  E.  &  W.  R.  Co.  v. 

Haring,  291. 
New  York   Mut.   Life  Ins.  Co.  v. 

Armstrong,   190,  191. 
Nicbolls  V.  Webb,  314,  315. 
Nichols  V.  Allen,  444. 
V.  Haynes,  307. 
V.  Iron  Ore  Co.,  434. 
V.  New  Britain,  122,  124. 
V.  Railroad  Co.,  105. 
Nickerson  v.  Gould,  170. 
Nicolay  v.  Mallery,  144. 
Niles  V.   Sire,  456. 
Noble  V.  Martin,  291. 
Norfolk  &   W.  R.  Co.  v.  Hoover, 
212. 
V.  Reeves.  264. 
Norman  Printers'    Supply   Co.   v. 

Ford,  313. 
Norman's  Will,  In  re,  241. 
Norris  v.  Monen,  289. 
North  Bank  v.  Abbot,  315. 
North  Chicago  St.  R.  Co.  v.  Lou- 
is, 105. 
Northern    Pac.   R.    Co.   v.   Kemp- 
ton,   348. 
V.  Lewis,   185. 
V.  Mares,  473. 
North  Platte  Waterworks  Co.   v. 

North  Platte,  24. 
Northrop  v.  Hale,  272,  281. 

V.  Sullivan.   138. 
North  Texas  Const.  Co.  v.  Bostick, 

361. 
Northwestern  Mfg.  Co.  v.  Judge. 

52. 
Northwestern  Mut.   Life  Ins.  Co. 

V.  Calloway,  71. 
Norton  v.  Willis,  265. 
Nunes   v.    Perry,  448. 


Oakos  V.   U.    S.,   342. 
v.  Weston,    227. 


O'Brien,  Appeal  of,   71. 
OCouuell  V.  People,  101. 

v.  Reg.,    143. 
O'Connor  v.  Majoribanks,  357. 
O'Donohoe,    In   re,    385. 
Ogden  V.  People,  219. 
O'Hare  v.   Lieb,   35. 
Oldham  v.   WoUey,  442. 
Old  V.  Keener,  244. 
Olmstead  v.  Bank,  401. 
Omychund    v.    Barker.    301,    302, 

353,  436. 
O'Neil  V.  Railroad  Co.,  235. 
Onondaga  Nation  v.  Thacher,  342. 
Orange   v.    State,    204. 
Oregon  S.  S.  Co.  v.  Otis,  95. 
Ormsby  v.  People.  144. 
Orr   V.   Hadley,   289. 
Orscheln  v.  Scott,  418. 
Orton  V.  McCord,  383. 
Osborn   v.    Allen,   86. 

V.  Bell,  289. 

V.  Forshee,  397. 
Osborne,   In  re,  39. 
Oscanyan  v.  Arms  Co.,  138. 
Osgood  V.  Groseclose,  66. 

v.  Skinner,  52. 
Oster  V.  Broe,  452. 
Over  V.  Schiffliug.  139. 
Owings  V.   Hull,  36. 

V.  Low,  130. 


Packer   v.    Steward,    457. 
Paddock  v.  Salisbury,  201. 
Page  V.  Cole,  458. 

v.  State,   243. 
Paige   V.   Cagwin,    129,    130,    132, 

133. 
Paine  v.  Aldrich,  222,  248. 

V.  Boston,  173. 

V.  Insurance  Co.,  37. 

V.  Trust    Co.,    4.52. 
Palmer  v.  Albee,  463. 
Palmer    Transfer    Co.    v.    Eaves, 

128. 
Paquete  Habana,  The,  32. 


496 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Pardoe  v.  Merritt,  112. 
Paris  V.  Lewis,  49. 
Parker   v.    Merrill,    135. 

V.  State,  157. 
Parkhurst  v.  Ketclium,  201,  214. 
Parks'  Estate,  lu  re,  287. 
Parrott  v.  Railroad  Co.,  245. 
Parry  v.   Libbey,  132. 
Paske  V.  Ollat.  77. 
Patch  V.  White.  464. 
Patrick   v.    Hallett,   471. 
Patterson  v.  Johnson,  245. 

V.  McCausland,   48,   52. 
Patteshall  v.  Turford.  309,  311. 
Patton  V.  Railroad  Co.,  185. 
Paul  V.  State,  144. 
Pauska  v.  Daus,  109. 
Pawashick,    The.   37.   430. 
Payne  v.  Treadwell,  34. 
Peace  v.   Jenkins,  316. 
Peak  V.  State,  325. 
Pearce  v.    Hooper,   443. 
Pearson  v.  McDaniel,  250, 
Pease  v.   Sbippen,  212. 
Peek  V.  Clark,  338. 

V.  Ritchey,  411. 

V,  Valentine.  312.  313,  395. 
Pells  V.  Webquish,  341. 
Pendleton  v.  Cline,  67. 
Pendrell    v.    Pendrell,   91. 
Pennington  v.  Gibson.  38. 
Pennsylvania  Co.  v.  Conlan,  218. 

V.  Loftis,  465. 
Pennsylvania  S.  V.  R.  Co.  v.  Zie- 

mer,  172. 
People  V.   Ah  Yute.  258. 

V.  Atkinson,  382. 

V.  Barker,  408. 

V.  Brown.  144.  370,  376.  377. 

V.  Buchanan,  385. 

V.  Caseome,  410. 

V.  Chapleau,   151,   157.   159. 

V.  Colbath,    281. 

V.  Cole,    407. 

V.  Collins,    188. 

V.  Conklinsr.  403. 

V.  Conroy,  73. 

V.  Copsey,   409. 


People  V.  Corey,  250,  446, 
V.  Court,   408. 
V.  Crapo,  410. 
V.  Davis,  211,  328. 
V.  Devine,  293,  412. 
V.  Dohring,   365. 
V.  Downs,   73. 
V.  Eastwood.  222. 
v.  Eldridge,  410. 
V.  Fair,  197,  199. 
V.  Farrell,   190. 
V.  Foote,  409. 
V.  Forbes,  381. 
V.  Freshour,    377. 
V.  Garbutt,  72.  102. 
V.  Gelabert,    160. 
V.  Gonzales,  237. 
V.  Gray,  333. 
V.  Green,   330. 
V.  Grunzig,   325. 
V.  Harris,    237,    241. 
V.  Hodgdon,   326. 
V.  Hospital,  360. 
V.  Hossler,  407. 
V.  Howes,  153. 
V.  Hulbut,  362. 
V.  Insurance  Co.,  281. 
V.  Jacobs,  400. 
V.  Jan    John,    296. 
V.  Kelly,  382. 
V.  Langtree,   358. 
V.  Lavelle.  222. 
V.  Linares,  388. 
V.  McCallan,  157. 
V.  McCoy,  163. 
V.  McElvaine.    242. 
V.  McGloin.   362. 
V.  McLaughlin,  188,  396. 
V.  McMahon,    151. 
V.  Mallon,   164. 
V.  Marion,  190. 
V.  Markham,  205. 
V.  :\Iather,    397,    398. 
V.  Mayes,   349. 
v.  Mead',  199. 
V.  Methvln,  204. 
V.  Miller,  365.  408. 
V.  Moett,  198. 


CASES 
[The  figures 

People  V.  Mondon,  159. 

V.  Murphy,  21K>. 

V.  O' Sullivan,   190. 

V.  Patrick,  364,  386. 

v.  Perry,  325. 

V.  Potter,  34. 

V.  Priori,  376. 

V.  Kaudolpli,  99. 

V.  Robinson,  158. 

V.  Ryland,  92. 

V.  SaEEoi-d,  401,  402. 

V.  Sharp,  218,  382. 

V.  Shattuck,  363. 

V.  Shaw,  329. 

V.  Simpson,  333. 

V.  Smith,  331. 

V.  Snyder,  51. 

V.  Strait,  248. 

V.  Taylor,  325,  329. 

V.  Thaw,  102. 

V.  Theobald,  237. 

V.  Thorn,  421. 

V.  Tice,  370. 

V.  Tuczkewitz,  241. 

V.  Tyler,  211,  369. 

V.  Velarde,  334. 

V.  Vernon,  331. 

V.  Walker,  411. 

V.  Ward,  102. 

V.  Weldon,  412. 

V.  Wentz,  155. 

V.  White,  197,  213. 

V.  Wood,  262. 
People  ex  rel.  Niebuhr  v.  McAdoo, 

355. 
People's  Gaslight  &  Coke  CJo.  v. 

Amphlett  422,  423. 
People,  to  Use  of  Town  of  High- 
land, v.  Suppiger,  33. 
Peoria    Gaslight   &    Coke   Co.    v. 

Railway  Co.,  173. 
Peoria  Scrap  Iron  Co.  v.  Cohen  & 

Co.,  135. 
Pepper  v.  Barnett,  446. 
Perkins  v.  Insurance  Co.,  315. 

V.  Railroad,  237. 

V.  Rogers,  51,  52. 

V.  Stickney.  290. 
Perry  v.  Bank,  95. 

m'kelv.ev.(2d  ED.) — 32 


CITED.  497 

refer  to  pages.] 
Perry  v.  Mfg.  Co.,  138. 
V.  Mussey,  401. 
V.  Newton,  252,  449. 
V.  Railroad  Co.,  418. 
V.  Weeks,  90. 
Person  v.   Wright,  48. 
Petaluma  Pav.  Co.  v.  Singley,  75. 
Peter  Adams  Paper  Co.   v.   Cas- 

sard,  110. 
Peters  v.  Fleni'ng,  50. 
Peterson  v.  State,  59. 
Peyroux  v.  Howard,  282. 
Pfeiffer  v.  Board,  49. 

V.  McCullough,  452. 
Phelln  V.  Kenderdine,  380. 
Phenix  Ins.  Co.  v.   Sullivan,  294. 
Philadelphia,  W.  &  B.   R.  Co.  v. 

Lehman,  44. 
Philadelphia  &  R.  R.  Co.  v.  Spear- 
en,  297. 
Philadelphia  &  T.  R.  Co.  v.  Stimp- 

son,  259,  388. 
Philadelphia  &  W.   C.   R.   Co.   v. 

Hickman,  448. 
Phillips  V.  Allen,  91. 
V.  Laughlin,  131. 
V.  People,  191. 
Phipps  V.  Mahon,  66,  67. 
Phoenix  Nat.  Bank  v.  Taylor,  287. 
Piatt's  Adm'r  v.  U.  S.,  454. 
Pickens  v.  Davis,  268,  270. 
Pickering  Light  &  Water  Co.  v. 

Savage,  420. 
Pickert  v.  Hair,  138. 
Pickup  V.  Insm-ance  Co.,  107. 
Piedmont  Sav.  Bank  v.  Levy,  132. 
Pier  V.  Duff,  130,  132. 
Pierce  v.  Kimball,  34. 

V.  U  S.,  155. 
Pike  V.  Pike,  103. 

V.  Wiggin,  136. 
Pinkham  v.  Cockell.  250. 
Pitcairn  v.  Philip  Hess  Co.,  128. 
Pitman  v.  Maddox,  301. 
Pittsburgh,  C,  C.  &  St.  L.  R.  Co. 

v.  Sheppard,  342. 
Pittsburgh,   S.   &   N.   Ry.    Co.   v. 
Lamphere,  236. 


498 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Piano  Mfg.    Co,   v.   Cunuiugham, 

48. 
Plummer  v.  State,  102. 
Polk  V.  State,  222. 
Pomero  v.  Pomero,  145. 
Pool  V.  Warren  County,  346. 
Poole  V.  Dicas,  303,  313,  314. 
Poonnan  v.  Miller,  31S. 
Porter  v.  Seller,  194. 
Post  V.  Kenerson,  306. 
Postal   Tel.    Cable   Co.   v.   Brant- 
ley, 140. 
Potter  V.  Publishing  Co.,  53. 

V.  Ware,  364. 
Poultuey  V.  Ross,  302. 
Powell  V.  Governor,  206. 
Powers  V.  Armstrong,  202. 

V.  Russell,  72. 

V.  State,  220. 
Prather  v.  Railroad  Co.,  397,  409. 
Pratt  V.  Andrews,  209,  215. 

V.  White,  302,  303. 
Prell  V.  McDonald,  34. 
Prentis  v.  Bates,  103. 
President,  etc.,   of   Quinsigamond 
Bank  v.  Hobbs,  205. 

V.  State,  158. 

V.  Torrington,   301,   335. 
Pringle  v.  Pringle,  407. 
Printup  V.  Patton,  121. 
Prior   of    Tlkeford    v.    Prior    of 

Caldwel,  406. 
Pritt  V.  Fairclough,  303. 
Prize  Cases,  The,  51. 
Proctor  V.  Houghtaling,  200,  207, 
212. 

V.  Railroad  Co.,  122,  123,  139. 
Pullen  V.  Hutchinson,  440. 
Puryear  v.   State,  296. 
Pusey  V.  Wright,  66,  67. 
Putnam  v.  Gunning,  121. 

V.  White,  50. 
Pye  V.  Butterfield,  374. 
Pym  V.  Campbell,  455. 

Q 

Queen,  The,  v.  Rhodes,  191. 
Quigley  v.  DeHaas,  456,  462. 


Quigley  v.  Thompson,  409. 
Quinley  v.  Atkins,  426. 
Quinn  v.  Egleston,  269. 

V.  Halbert,  294. 
Quock  Thing  v.  U.   S.,  69. 


RadclyfCe  v.  Barton,  295,  298. 
Radman    v.    Microbe    Destroyer, 

227. 
Railing  v.  Com.,  327. 
Railroad    &    Telephone    Cos.    v. 

Board,  49. 
Railway    Officials'    &    Employes' 

Aec.  Ass'n  v.  Coady,  318. 
Raines  v.  Towgood,  374. 
Rains  v.  Oshkosh,  34. 
Rambler,  v.  Tryon,  262. 
Ramsey  v.  Smith,  266. 
Randegger  v.  Ehrhardt,  130. 
Randel  v.  Yates,  383. 
Randolph  v.  Loughlin,  450. 
Ransom  v.  McCurley,  214. 
Rapier  v.  Insurance  Co.,  134. 
Rapp  V.  Becker,  137,  171. 
Raridan  v.  Railroad  Co.,  48. 
Rateliff  v.  Wales,  357. 
Rawley  v.  Browne,  90. 
Rawson  v.  Haigh,  .^49. 
Real  V.  People,  409. 
Redd  V.  State,  151. 
Redlich  v.  Bauerlee,  304. 
Reed  v.  Jackson,  334. 

V.  Orton,  292. 
Reedy  v.  Millizen,  79,  86,  89. 
Reese  v.  Reese,  448. 
Reg.  T.  Baldry,  151,  157. 

V.  Bedfordshire,   333,  335. 

V.  Brimilow,    99. 

V.  Buckley,  311. 

V.  Cleary,   3.32. 

V.  Clewes,   156. 

V.  Farr,  428. 

V.  Francis,  189. 

V.  Garbett,    377. 

V.  Gilhnm,  156. 

V.  Jordan,  99. 

V.  Kingslake,   378. 


CASES   CITED. 
[The  figures  refer  to  pages.l 


499 


Reg.  V.  Lower  Heyford,  323. 

V.  Manning,  143. 

V.  Mayor,   117. 

V.  Moore,    156. 

V.  Morgan,  332. 

V.  Oddy,191. 

V.  Overseers  of  Birmingham, 
320,  321,  322,  323. 

V.  Payne,  356. 

V.  Perliins,  330. 

V.  Rowton,  194,  197,  206. 

V.  St.  Giles,  439. 

V.  Sloggett,  378. 

V.  Smitli,  93. 

V.  Thompson,  358. 

V.  Tuberfleld,   197. 

V.  Willshire,    117. 

V.  Worth,  311. 
Reinhart  v.  Miller,  438. 
Reis  V.   Hellman,    121. 
Remsen  v.  People,  198. 
Rex  V.  All  Saints,  375. 

V.  Baker,  328. 

V.  Bathwick,  375. 

V.  Cooke,  143. 

V.  Culpepper,  433. 

V.  Derrington,  158. 

V.  Drummond,  324,  330. 

V.  Foster,    .344. 

V.  Harborne,  117. 

V.  Harriugworth,  4.36. 

V.  Holy  Trinity,  428. 

V.  Hunt,  428. 

V.  Mead,  328. 

V.  Owen,  93. 

V.  Parker,   256. 

V.  Pike,  330. 

V.  Sutton,  42. 

V.  Thompson,  143. 

V.  Twyning,  116. 

V.  Wariekshall,  161. 

V.  Watson,  427. 

V.  Wilde,  31. 
Rhine  v.  Robinson.  293. 
Ricard  v.  Williams,  98. 
Rice  V.  Com.,  79. 

V.  Melott,  283. 

V.  Rice,  247. 


Rice  V.  Wallowa  County,  236. 
Rich  V.  Eldrodge,  308. 

V.  Flanders,  1.35. 
Richards  v.  Bassett,  340. 
Richardson  v.  Emery,  305. 

V.  Emmett,  359. 

V.  Hedges,  33. 
Richmond  &  D.  R.  Co.  v.  Jones, 

443. 
Rickerson  v.   Insurance  Co.,  454. 
Ridgelej'  v.  Johnson,  442. 
Ridley  v.  Gyde,  349. 
Riggs  V.  Myers,  464. 

V.  Powell,  250,  251. 
Riley  v.  Johnston,  382. 

V.  Suydam,  137. 
Rixford  v.  Miller.  108. 
Robb,  Appeal  of,  357. 

V.  College,  112. 
Roberts  v.  Bennett,  47. 

V.  Railroad  Co.,  245. 
Robertson  v.  Perkins,  473. 
Roberts'  Will,   In  re,  232. 
Robinson  v.  Dibble's  Adm'r,  306. 

V.  Oilman,  202. 

V.  People,   151. 

V.  Railroad  Co.,  365. 

V.  Robinson,  71,  145. 
Robison  v.   Wolf,  465. 
Rochester    German    Ins.    Co.    v. 

Peaslee  Gaulbort  Co.,  458. 
Rockwell  V.  Taylor,  346. 
Rockwood  V.  Poundstone,  401. 
Roddy  V.  Finuegau,  376. 
Rodgers  v.  State,  44. 
Roe  V.  Jones,  299. 

V.  Strong,  338. 
Rogers  v.  Armstrong  Co.,  101,  103. 

V.  Daniels,  384. 

V.  Lyon,  383. 

V.  Hitter,  447. 
Rooney  v.  Casualty  Co.,  384. 
Root  V.  King,  201. 
Root's  Estate,  404. 
Rose  V.  Chapman,  138. 

V.  Gunn.  135. 

V.  Rose,  142. 
Ross  V.  Boswell,  48. 


500 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Rosser,  In  re,  374. 

Ross-Lewin  v.  Insurance  Co.,  295, 

346. 
Roston  V.  Morris,  294. 
Rost  V.  Railroad  Co.,  418. 
Roth   Clotliing   Co.    v.   Steamsliip 

Co.,  95. 
Rothrocli    V.    Cedar    Rapids,    222, 
223,  345. 

V.  Gallaher,  292. 
Rothschild  v.  Sessell,  308. 
Royal  V.  Chandler,  320,  336. 
Royal  Ins.  Co.  v.  Noble,  375. 

V.  Schwing,  69. 
Ruan  V.  Perry,  202. 
Rubey  v.  Culbertson,  90. 
Ruch  V.  Rock  Island,  292,  296. 
Rudd  V.  Bank,  35. 
Rulofson  V.  Billings,  319. 
Rumsey  v.  Telephone  Co.,  304. 
Russell  V.   Jackson,   383. 

V.  Martin,  52. 

V.  Russell,  359. 
Ryall  V.  Allen,  219. 
Ryan  v.  Bristol,  224. 

V.  Button,  127. 

V.  Insurance  Co.,  106. 
Ryder  v.  Wombwell.  61. 
Ryer  v.  Insurance  Co.,  19. 


Sage  V.  State,  293. 

St.   Louis,    I.    M.   &   S.    R.  Co.   v. 

Taylor,  69. 
St.  Tx)uis,   M.  &   S.    E.   R.   Co.   v. 

Shannon,  231. 
St.  Louis  S.  W.  R.  Co.  of  Texas  v. 

Ricketts,  363. 
St.  Louis,  etc.,  R.  Co.  v.   Stroud, 

208. 
Saltar  v.  Applegate,  37. 
Saltern  v.  Melhuish.  431. 
Sample  v.  Frpst.  384. 
Sampson  v.  Hughes,  192,  216. 
Sanchez  v.  People,  401. 
Sanders  v.  Simcich,  115. 

V.  State,  141. 
Sanford  v.  Ellithorp.  262. 


Santissima    Trinidad    St.    Ander, 

The,  41. 
Saranac,  The,  346. 
Sargeant  v.  Sargeant,  130,  132. 
Sargent  v.  Burton,  262. 

V.  Wilson,  205. 
Sartorious  v.  State,  389. 
Satterthwaite  v.  Powell,  115. 
Scalf  V.  Collins,  247. 
Scanlan  v.  Railroad  Co.,  43. 
Schaffer  v.  Emmons,  439. 
Schearer  v.  Harber,  292. 
Schlencker  v.   State,  220,  222. 
Schmaltz  v.   Mfg.   Co.,  233. 
Schneider  v.  Manning,  242. 
Schnellbacher    v.    Plumbing    Co., 

304. 
Schoenhofen      Brewing      Co.      v. 

Wengler,  140. 
Schoerken    v.    Swift    &    Courtney 

&  Beecher  Co.,  41. 
School  Dist.  No.  56  v.  Insurance 

Co.,  22. 
Schroeder  v.  Railroad  Co.,  236. 
Schubkagel  v.  Dierstein,  384. 
Schultz  V.  Culbertson,  147. 

V.   Railroad  Co.,   410. 
Scoggiu  V.  Dalrymple,  336. 
Scotia,    The,    36,    49. 
Scott   V.    Donovan,   451. 
V.  Neeves,    463. 
V.  People,  324. 
V.  Sampson,     201,     207,     211, 

212. 
V.  Wood,   68,  70. 
Scruton  v.  Hall,  38. 
Seaboard   Air   Line   Ry.   v.   Hub- 
bard. 348. 
Searcy    v.    Miller,   355. 
Searle    v.    Lord    Barrington,    316. 

317. 
Secombe  v.  Railroad  Co.,  233. 
Second    Borrowers'    &    Investors' 

Bldg.  Ass'n  V.  Cochrane,  146. 
Security  Co.  v.  Graybeal,  305. 
Seefeld  v.  Railroad  Co.,  266. 
Seeger  v.  Boiler  Works,  465. 
Seller  v.  People,  92. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


501 


Self  V.  State.  151. 
Seliger  v.  Bastiau,  227. 
Selleck  v.  Janesville,  424. 
Seltzer  v.  Saxton.  417. 
Severance  v.  Carr,  399. 
Sever  v.  Lyons,  33. 
Seville  v.  State.  144.  227,  234. 
Sewell  V.  Burdick,  47(i. 
Seymour  v.  Bruske,  191. 

V.  Fellows,   243. 
Shaffuer   v.    Com.,    192. 
Shailer  v.  Bumstead.  2(i2.  263. 
Shannon  v.  Swanson,  361. 
Sharp  V.  Johnson,  IKJ. 

V.  Railroad  Co.,  359. 

V.  U.  S.,  265. 
Shaver  v.  McCarthy,  134. 
Sheldon  v.  Bigelow,  259. 

V.  Railroad  Co.,  184. 
Sherlock  v.  Railroad  Co..  266. 
Sherman  v.  People,  4.32. 
Sherrill  v.  Telegraph  Co..  222. 
Shewalter    v.    Bergman,    199. 
Shields  v.  Boucher,  274. 

v.  Cunningham.   411. 

V.  Exploration  Co.,  455. 
Shinners   v.   Proprietors,   179. 
Shirk  v.  Brookfield.  134. 
Shober  v.   Jack,   132,   133. 
Shores  Lumber  Co.  v.  Stitt,  458. 
Shotwell   v.  Harrison,  37. 
Shove   V.    Wiley,   314.    315. 
Shrewsbury    Peerage    Case,    272, 

273,  276. 
Shriedley  v.  State,  190. 
Shroeder   v.   Railroad   Co.,  2.36. 

V.  Webster.  4('»>. 
Shroyer   v.    Miller.   215. 
Sidney    School    Furniture    Co.    v. 

School  Dist.,  60. 
Sidney's  Trial.  445.  447. 
Siefert  v.  Siefert.  288. 
Silverstain   v.    O'Brien.   25,5. 
Silver  v.  Worcester.  308.  .309. 
Simmons  v.  Steamboat  Co.,  218. 
Simons  v.   Steele.  306. 
Simpson  v.  State,  59. 


Singer  Mfg.  Co.  v.  Bennett,  35. 

v.  McFarland,  450. 
Sioux   City  &   P.   R.   Co.   v.  Fiit 

layson.  238. 
Sir  Walter  Raleigh's  Case,  255. 
Sisson  V.  Railroad  Co.,  230,  264. 
Sitler  V.  Gehr.  272. 
Skinner  v.  Brighani,  443. 
Slatterie  v.  Pooley,  126,  432. 
Slattery  v.  Harley,  33. 

V.  People,  164. 
Slingerland  v.  Slingerland,  295. 
Sloan  V.   Edwards,  210. 

V.  Railroad  Co.,  405,  412. 

V.  Somers,  294. 
Slocovich  V.  Insurance  Co.,  228. 
Smalley  v.  Appleton.  222. 
Small  v.  Prentice,  95. 
Smartle  v.  Williams,  341. 
Smitha  v.  Flournoy's  Adm'r,  33. 
Smith  V.  Blakey,  318. 

v.  Bleakey,   311. 

V.  Boyer.  130,  132. 

V.  Clayton,  49. 

V.  Compton,   266. 

V.  Cornett,  339. 

V.  Forrest,  336. 

V.  Hickenbottom.  247. 

V.  Jeffryes,  463. 

V.  Lane,  315. 

V.  Nowells,   336. 

V.  Palmer,  126,  432. 

V.  Putnam,  85. 

V.  Railroad  Co.,   185. 

V.  Rentz.  302,  308. 

V.  Royalton,    411. 

V.  Satterlee,  140. 

V.  Scully,  342. 

V.  Sister   of  Good   Shepherd, 
170. 

V.  Smith.  228,  248. 

V.  Stevens.  227. 
Sniitlnvick  v.  Evans,  205. 
Smyth  V.  Banking  Co.,  269. 
Snyder  v.  Com.,  197. 
Solomon  R.  Co.  v.  Jones,  296. 
Soule  V.  Bruce,  194. 


502 


CASES   CITED. 
[The  figures  refer  to  pages.] 


South  Covington  &  C.  St.  R.  Co. 

V.  Riegler,  346. 
Southern  Bell  Telegraph  &  Tele- 
phone Co.  V.  Jordan,  240. 
Southern    Exp.    Co.    v.    Thornton, 

250. 
Southern  Kansas  R.  Co.  v.  Rob- 
bins,  202. 
Southern  Pac.  Co.  v.  Hall,  419. 

V.  Wellington,  128. 
Southern  R.  Co.  v.  Bronuer,  291. 

V.  Covenia,  47. 
Southern  St.  Ry.  Advertising  Co. 

V.  Mfg.  Co.,  456. 
Southwest    School    Dist    v.    Wil- 
liams, .335. 
South  &  N.  A.  R.  Co.  v.  McLen- 
don,  222. 

V.  Pilgreeu,  51. 
Spalding  v.  Lowe,  294. 
Sparhawk  v.  Sparhawk,  359. 
Spaulding  v.  Hallenbeck,  130. 
Spear  v.  Richardson,  240. 
Speirs  Fish  Co.  v.  Robbins,  452. 
Spencer,  Appeal  of,  222. 

V.  Railroad  Co.,  218. 
■Sperry  v.  Moore's  Estate,  407. 
'.Spiegel  V.  Hays,  409. 
Spies  V.  People,  144. 
Spragins  v.   White,  65. 
Spring     Valley     Waterworks     v. 

Drinkhouse,  172. 
Stackhouse  v.  Hortou,  247. 
Stackus  V.  Railroad  Co.,  65. 
Stacy  V.  Graham,  90. 
Stafford  v.  Ass'n,  215. 
Stanbro  v.  Hopkins,  355. 
Stanford  v.  Bailey,  33. 
Stapylton  v.  Clough.  311. 
Starratt  v.  Mullen.  07. 
State  V.  Able,  293,  290. 

v.  Aldridge,  452. 

V.  Alexander,    4.52. 

V.  Arnold,  331. 

V.  Banister,  331. 

V.  Bartlett,  369. 

V.  Benner.  399.  403. 

V.  Boswell,  205. 


State 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 


V.  Bowles,  4.51. 
Bowman,  164. 
Brady,  144. 
Branham,   157. 
Bridgman,   375. 
Briggs,   375. 
Brown,   35,   144,   161. 
Bruce,  102. 
Buchanan.    144. 
Buchler,  223. 
Burks,  400. 
Cain,   281. 
Caldwell,  145. 


Cameron. 


51. 


Campbell,   298. 
Carrick,  151. 
Carter,  329. 
Chyo  Chiagk,  354. 
Cleaves,  92. 
Clifford,  155. 
Cole,    59. 
Cornish,  32.5, 
Crawford,  71,   73. 
Crouse,  411. 
Cunningham,  456. 
Curran,  199. 
Daley,    198. 
Daniel,  325. 
Darnell,  158. 
Daubert,  144. 
Downs,  32. 
Drake,    153,   156. 
Eagan,  205. 
Edwards,  163. 
Elliott,  331,  333. 
Falk,  389. 
Fasset,  362. 
Fay,  377. 
Feltes,  1.59. 
Fitzsimon,  210. 
Flanders,  144,  391. 
Fox,    258. 
Garrett,  162. 
Gay,  445. 
Gilman,  160. 
Glynn,  411. 
Goodwin,  411. 
Goyette,  47. 


CASES   CITED. 

[The  figures  refer  to  pages.] 

State  V.  Graham,  162. 

State  V.  Olin,  378. 

V.  Grant,  412. 

V.  Palmer,  190. 

V.  Graves,  3G9. 

V.  Patterson,  329,  331. 

V.  Gray,  331. 

V.  Pike,  84,  101,  117. 

V.  Grear,  159. 

V.  Plym,  107,  117. 

V,  Haudy,  99. 

V.  Porter,  237. 

V.  Harper,  327. 

V.  Potts,  213. 

V.  Harris,   2G0. 

V.  Prudhomme,  308. 

V.  Hayden,  212. 

V.  Pugh,  99. 

V.  Hayes,  47. 

V.  Railroad  Co.,  51. 

V.  Height,  368. 

V.  Ramsey,  222. 

V.  Hill,  163,  410. 

V.  Rawls,  394. 

V.  Hiuchman,  37. 

V.  Ray,  32. 

V.  Holden,  153. 

V.  Reasby,  368. 

V.  Hooker,  298. 

V.  Reed.  164,  191.  203,  20i 

V.  Intoxicating  Liquors,  49. 

V.  Rinehart,  145. 

V.  Ivins,  349. 

V,  Rodman,  198. 

V.  James,  222. 

V.  Romaine,  91. 

V.  Johnson,  214,  293,  367. 

V.  Saunders,  331. 

V.  Jones,  102. 

V.  Sawtelle,  361. 

V.  Jordan,  396. 

V.  Schaefer,  102. 

V.  Kindle,  331. 

V.  Scott,  250. 

V.  King,   199. 

V.  Sheets,   237. 

V.  Kinney,  349. 

V.  Shelton,  329. 

V.  Knight,  237. 

V.  Simon,  32.5,  331, 

V.  Lapage,  197. 

V.  Simpson,  33. 

V.  Lawrence,  103. 

V.  Slack,  403. 

V.  Levy,  361. 

V.  Smith,  408. 

V.  Lewis,  247. 

V.  Soper,  373. 

V.  Lu  Sing,  354. 

V.  Spencer,  103. 

V.  McBryde,  60. 

V.  Spendlove.    198. 

V.  McCauley.  432. 

V.  Staley,  154.  158. 

V.  Main,  22.  26. 

V.  Staples,  203. 

V.  Mecum,    79. 

.     V.  Starnos.   218. 

V.  Meyer,   327. 

V.  Stone,  .385. 

V.  INIeyers,  246,  349. 

V.  Swift,  333. 

V.  Minton,  144,  190,  252. 

V.  Terline,  29,5. 

V.  Mitchell,   158. 

V.  Thibeau.  144. 

V.  Moberly,  170. 

V.  Thompson.   2."')0. 

V.  Montgomery,  410. 

V.  Tompkins,  449. 

V.  Moore,  88. 

V.  Tweedy,  331. 

V.  Morris,  44,  48. 

V.  Vnignour.  162. 

V,  INIorse.  203,  205. 

V.  Wnlkor.  157. 

V.  Mnrfrc.<?sboro,  34. 

V.  Ward.  222,  250.  390, 

V.  Murray,  209. 

V.  Waterworks    Co.,    292 

V.  Nelson,  361. 

V.  Wontworth.  191,  376. 

V.  Ober,  370,  371. 

r.  Williams,  329. 

V.  O'Brien,  296,  297. 

V.  Williamson,    247. 

503 


504 


CASES   CITED, 
[The  figures  refer  to  pages.] 


State  V.  Wilson,  325,  375. 

V.  Witham,   159. 

V.  Wood,  329. 

V.  Woodruff,  451. 

V.  Wook,  3G3. 
State  ex  rel.  City  of  Indianapolis 

V.  Gas  Co.,  45. 
State   ex   rel.   Leonard  v,   Rosen- 
thal, 70. 
State  ex  rel.  Marr  v.  Stearns,  35. 
State  ex  i*el.   Oddle  v.   Sherman, 

34. 
Stayner  v.  Burgess  of  Diotwisch. 

2S2. 
Stearns  v.  Bank,  402,  403. 

V.  Field,  242. 
Stebbins  v.  Duncan,  436,  437,  438. 
Steele  v.  Lord,  428. 
Stein  V.  Bowman,  273.  281. 
Steiuke's  Will,  In  re,  2!J0. 
Stemmler  v.  Mayor,  119. 
Stephen  v.  Gwenap,  320. 
Stephens  v.  People,  234. 

V.  Scott,  473. 
Stewart  v.  Bank,  289.  293. 

V.  Railroad  Co.,  423. 

V.  State,  198. 
Stier  V.  Oskaloosa,  34. 
Stittyen  v.  Ruudle,  35. 
Stobart  v.  Dryden,  327. 
Stocker  v.  Foster,  317. 
Stoddard  v.  Sloan,  33. 
Stokes  V.  Stokes,  07.  08. 
Stone  V.  Insurance  Co.,  292. 

V.  Railroad,    417. 
Story  V.  Nidiffer.  121. 

V.  Ulman,  39. 
Stout  V.  Com'rs,  52. 
Stover  V.  People.  198.  370,  379. 
Stow  V.  Converse,  215. 
Stowe  V.  Bishop,  223. 
Street  R.  Co.  v.  Xoltlienius,  218. 
Stribling  v.  Brougher.  130. 
Strickler  v.  Todd,  97. 
Strong's    Ex'rs    v.    Brewer,    249, 

447. 
Strong  V.  State,  192. 

V.  Stevens  Point.  218. 


Stroud  V.  Tilton,  302,  306,  307. 
Stubbs  V.  Houston,  247. 
Stuht  V.  Sweesy.   141. 
Sturla   V.   Freccia,  341. 
Sturm  V.   Insurance  Co..  407. 
^u..geu  V.  St.  Leonards,  2G7,  208. 
Sudlow  V.  Warshiug,  252. 
Sullivan  v.  Railroad  Co.,  409. 

V.  Sullivan,  81. 
Smnmons  v.  State,  293,  296,  297. 
Supples   v.    Cannon,   365. 
Sussex  Peerage  Case,  37,  233,  311. 
Sutherland  v.  Ross,  359. 
Sutton  V.  Corning,  95. 

V.  Gregory,  303. 

V.  Sadler,    102. 
Swain  v.  Cheney,  302,  307,  309. 

V.  Comstock,    38. 
Swan  V.  Middlesex  County,  230. 
Sweet  V.  Gibson,  452. 

V.  Owens,    382. 
Swift  &  Co.  V.  Mutter,  67. 
Swing  V.   Walker.   120. 
Swinnerton  v.   Insurance  Co.,  51.- 
Sydleman  v.  Beekwith.  224. 
Sykes  v.  Dunbar,  302. 


Taft  V.  Little.  299.  395.  459. 
Tanner  v.   Hughes,  94. 
Tarbox  v.   State,  190. 
Tate  V.  Tate's  Ex'r,  318. 
Tatum  V.  Catomore,  400. 
Taylor  v.   Barclay,  41. 

V.  Diplock.   11.5. 

V.  Gould,   316. 

V.  Lark  in,  365. 

V.  Schofleld,  409. 

V.  State,   190,   3S0. 

V.  Trich,  108. 

V.  Witham,  323. 
Taylor  Will  Case,  2GS. 
Teall   V.   Van   Wyck.    437. 
Teele  v.  Boston,  228. 
Teerpenning  v.  Insurance  Co..  218. 
Temperance  Hall  Ass'n   v.  Giles,. 
182. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


505 


Tennant  v.  Dudley.  141. 

Terre  Haute  &  I.  R.  Co.  v.  Voel- 

ker,  64. 
Territory  v.  Campbell,  144. 
V.  Hart,  247. 
V.  O'Hare,  250.  2.51.  446. 
Teutonia  Loan  &  Building  Co.  v. 

Turrell,  37. 
Texas  M.  R.  Co.  v.  Jumper,  71. 
Texas  &  P.  R.  Co.  v.  Ellerd,  245. 
V.  Stephens,  174. 
V.  W.  Scott  &  Co.,  265. 
Texas,  etc.,  R.  Co.  v.  Gentry,  105. 
Tharpe  v.  Gisburne,  447. 
Thies  V.  Insm-ance  Co.,  136. 
Tbomas'  Case,  255. 
Thomas  v.  Nelson,  457. 
Thompson,  In  re,  172. 

V.  Blackwell,   296,   297. 
V.  Blanchard,  401. 
V.  Boyle,   237. 
V.  Brannon,  269. 
V.  Ish,  262. 
V.  Powles,  41. 
V.  Railroad  Co.,  367,  373. 
V.  Thompson,    465. 
V.  U.  S.,  409. 
Thomson  v.  Porter,  303. 
Thorne  v.  Cosand,  262. 
Thornton  v.  Assurance  Co.,  225. 
V.  Britton,  291,  293. 
V,  Tandy,  132. 
Thorp  v.  Goewey,  383. 
Thorson  v.  Peterson.  33. 
Throckmorton  v.  Holt,  269. 
Thurston  v.   Slatford,   468. 
Tibbetts  v.  Flanders,  297. 
Tichenor  v.  Newman,  342. 
Tilton  V.  Society,  463. 
Tingley  v.  Cowgill,  243. 
Tischner  v.  Rutledge,  .35. 
Tisdale  v.  Insurance  Co.,  88. 
Tish    V.    Welker,   422. 
Titlow  V.  Titlow,  248. 
Tolman   v.    Emerson,  442. 
Tome  V.  Railroad  Co..  450. 
Tomlinson  v.  Greenfield.  48. 


Tooke's  Case,  96. 

Toole  V.  Nichol,  406. 

Tooraer  v.  Gadsden,  306, 

Town  of  Albion  v.  Hetrick,  34. 

Town  of  Cavendish  v.  Troy.  223. 

Town  of     Central     Covington     v. 

Wrighans,  34. 
Town  of    Cherokee   v.    Land    Co., 

173. 
Town  of  Greensborough  v.  Under- 
bill, 116. 
Town  of  La  Grange  v.  Chajmian, 

33. 
Town  of  Londonderry  v.  Andover, 

274. 
Town  of  Randolph  v.  Woodstock, 

413. 
Town  of    Waterbury   v.   Traction 

Co.,  138,  423. 
Town  of     West     Seattle     v.     Im- 
provement Co.,  33. 
Town  of  Wilson  v.  Markley.  452. 
Traders'  Nat.  Bank  v.  Jones,  430. 
Trammell  v.  Hudmon,  320. 
Trapp  V.  Druecker,  229. 
Travelers'  Ins.  Co.  v.  Cotton  Mills, 

272. 
Travers  v.  Snyder,  144. 
Traverse  v.   State,   170. 
Treadway  v.  Railroad  Co.,  138. 
Troeder  v.  Hyams,  439. 
Trout  v.  Railroad  Co..  472. 
Trustees  of  Wadsworthville  Poor 

School   V.   Jennings,   96. 
Truworthy  v.  French.  465. 
Tucker  v.  Donald,  237. 
V.  Railroad,  231. 
V.  Society,  464. 
Tull  V.  Railroad  Co.,  81. 
Turley  v.  Thomas,  49. 
Turnbull  v.  Richardson.  406,  407. 
Turner  v.  Yates,  139. 
Tuttle  V.  Rainey,  251.  447. 
Tyler  v.  THmer,  134.  136. 

V.  Wilkinson,  97. 
Tyres  v.  Kennedy,  316. 


506 


CASES   CITED. 
[The  figures  refer  to  pages.] 


u 


Ullman  v.  Babcock,  250. 
Uli-icli  V.  Ulrich,  79. 
Union  Bank  v.  Knapp,  315. 
Union  Bank  of  Brooklyn  v.  Case, 

453. 
Union    Cent.     Life     Ins.     Co.     v. 

Woods,  114. 
Union  Pac.  R.  Co.  v.  Lucas,  245. 
Union  Pac.  Ry.  v.  Yates,  342. 
Union  Stockyards  Co.  v.  Goodwin, 

342. 
Unis  V.  Charlton's  Adm'r,  412. 
U.   S.  V.  Anthony,  116. 

V.  Bales  of  Cotton,  42. 

V.  Breed,  234. 

V.  Carr,  113. 

V.  Charles,  160. 

V.  Gooding,  142,  348. 

V.  Gunnell,  198. 

V.  Jackson,  33. 

V.  Johnson,  32. 

V.  McGlue,  2.32. 

V.  McKee,   144. 

V.  Macomb,  296. 

V.  Palmer,    41. 

V.  Payne,  42. 

V.  Peggy,  42. 

V.  Reynes,   43. 

V.  Reynolds,   291. 

V.  Richard,  162. 

V.  Ross,   113. 

V.  Spalding,  4.59. 

V.  Sterland.  293. 

V.  Strauss  Bros.  &  Co.,  27. 

V.  Turner,    36. 

V.  Vansickle,    205. 

V.  Williams,  42. 

V.  Wong  Quong  Wong,  103. 

V.  Wood,  297. 
United  States  Exp.  Co.  v.  Keefer, 

49. 
Upstone  V.  People,  247. 


V 


Vagts  V.  Utman,  245. 
Valentine  v.  Piper,  437. 


Valentine's  Will,  In  re,  260. 
Valentini    v.    Insurance   Co.,    216, 

217. 
Van  Aernam  v.  Van  Aernam,  91. 
Vance  v.  Rankin,  24. 
Vandine  v.  Burpee,  244,  245. 
Van  Keuren  v.  Parmelee,  136. 
Van  Matre  v.  Sankey,  233. 
Van  Rensselaer  v.  Jones,  438. 
Van  Sickle  v.  Gibson,  274. 

V.  People,  450. 
Van  Wycklen  v.  Brooklyn,  225. 
Vawter  v.  Hultz,   194. 
Veiths  V.  Hagge,  67,  69. 
Veley  v.  Chinger,  95. 
Vezey  v.  Rashleigh,  456. 
Vicksburg  &  M.  R.  Co.  v.  O'Brien, 

346,  395. 
Viemeister  v.  White,  46. 
Village   of   Grant   Park   v.   Trah, 

422. 
Village  of  Oxford  v.  Willoughby, 

441. 
Village  of  Shelby  v.  Clagett,  222. 
Village  of  Winooski  v.  Gokey,  34. 
Villiueuve  v.  Railroad  Co.,  402. 
Vining  v.  Baker,  90. 
Vinton  v.  Peck,  2.50. 
Violette  v.  Rice,  456. 
Vogt  V.  Shienebeck,  49. 
Volusia  County  Bank  v.  Bigelow, 

396. 
Vosburgh  v.  Thayer,  303,  314. 
Vowies  V.  Toung,  276. 

w 

Wabash  R.  Co.  v.  Johnson,  432. 

V.  McDaniels,    176. 

V.  Miller,  288. 
Waddingham  v.  Hulett,  213. 
Wagers  v.  Dickey.  296. 
Wagoner  v.    State,  99. 
Walbridge  v.  Knipper,  287.  292. 
Waldele  v.  Railroad  Co.,  326,  344. 
Walker  v.  Rogers,  240. 

V.  Insurance  Co.,  137. 

V.  jNIoors,   266. 

V.  Walker,  248. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


507 


Wallach  v.  Railroad  Co.,  287,  290. 
Waller  v.  Leonard,  140. 
Wallis  V.  Randall.  134. 

V.  White,    213. 
Walls  V.  State,  144. 
Walsh  V.  Wheelwright,  131. 
Walterhouse  v.  Walterhouse,  290. 
Walton  V.  Meeks,  87. 

V.  State.  205,  210. 
Wampler  v.  State,  34. 
Ward  V.  Cameron,  270. 
Ward's  Heirs  v.  Mcintosh,  90. 
Ware  v.  Brookhouse,  322. 
Warlick  v.  White,  451. 
Warner  v.  Lockerby,  205. 

V.  Warner,  197. 
Warren  v.  Nichols,  296. 
Wartone  v.  Simon,  91. 
Washburn   v.    Railroad    Co.,    173. 
Washington  v.    Bank,   277. 
Waterman  v.  Whitney,   262,   268. 
Waters  v.  Waters.  293,  294. 
Watrous  v.   Cunningham,  294. 
Watson  V.  Railroad  Co.,  173,  265, 
412. 
V.  State,  47,  49. 
Watt  V.  Hoch,  48. 
V.  People,   369. 
Weaver  v.  State,  67. 
Weber  v.  Railroad  Co.,  472. 
Weeks  v.  Lyndon,  218. 

V.  Sparke,  334. 
Weidman  v.  Symes,  450. 
Weinhandler  v.  Brewing  Co.,  428. 
Welch  V.  Abbot,  411. 

V.  Insurance  Co.,  236. 
V.  Railroad  Co.,  288,  291. 
V.  Stipe,  247. 
Welch  &  Co.  V.  Greene.  396. 
Welcome  v.  Batchelder,  294. 
Weller  v.  State,  102. 
Wells  V.  Bank,  110. 
V.  Drayton,  292. 
V.  Hatch,   306. 
V.  Hobson,  313. 
V.  Williams,    42. 
Welsh  V.  Barrett,  309,  314,  315. 
Wendell  v.  Abbott,  338. 


Weutworth  v.   Wentworth,  86. 

West  V.    State,  251,  320. 

West  Chicago  St.  R.  Co.  v.  Gren- 

ell,  418. 
Westerman  v.  Westerman,  358. 
Western  v.  Troy,   105. 
Western  Assur.  Co.  v.  Mohiman, 

238. 
Western  Maryland  R.  Co.  v.  Man- 

ro,  318. 
Western  Twine  Co.  v.  Wright,  95 
West  Jersey  Traction  Co.  v.  Rail- 
road Co.,  137. 
Wetzler  v.  Kelly,  48. 
Wheeler  v.  U.  S..  3<>0,  361. 
Whelan  v.  Lynch,  264. 
Whitaker  v.  Marsh,  291. 
Wbitcher  v.  Morey,  294. 
White  V.  Com.,  211. 
V.  Holman,  319. 
V.  IMarquette.  345. 
V.  Miller,    348. 
V.  Railroad    Co.,   48,    346. 
V.  State,   162,  376. 
V.  Steamship    Co.,    140,    141, 

142. 
V.  Wood,  436. 
Whiteley  v.  Society,  88. 
Whitelock  v.  Baker,  276. 
White  Sewing  Mach.  Co.  v.  Bev- 
erage Co.,  174. 
Whiting  V.  Nicholl,  89. 
Whitley  v.  State,  151. 
Whitman  v.  Shaw,  270. 
Whitney  v.  Boardman,  234. 

V.  Thacher,  230,  264. 
Whiton  V.  Insurance  Co.,  283. 
Whittuck  V.  Waters,  2S0. 
Whyman  v.  Garth,  443. 
AVight  Fir#ijrooflng  Co.  v.  Poeze- 

kai,  223. 
Wilder  v.  St.  Paul,  292. 

V.  De  Cou,  234. 
Wilkins  v.  Babbershall,  405. 

V.  Earle,  107. 
Will  V.  Mendon,  222. 
Williams  v.  Ashton,  460. 
V.  Brown,    237. 


508 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Williams  v.  Conger,  2(i9. 

V.  Lee,  247. 

V.  People,  71. 

V.  Spencer,  248. 

V.  State,  52,  153.  291. 

V.  Walker,  403. 
Willis  V,  Quiniby,  398. 
Wilson  V.  Betts,"  441. 

V.  Boer  em,  326. 

V.  Braden,  275. 

V.  Bumstead,  38. 

V.  Oom.,  831. 

V.  Goodin,  305. 

V.  Grove,  3M. 

V.  Owens,  36. 

V.  Simpson,  270. 

V.  State,  211. 

V.  U.  S.,  151,  153,  157. 

V.  Wall,  42. 

V.  Wilson.  308. 
Winehart  v.  State.  117. 
Wing-  V.  Angrave,  115. 
Winnipiseogee  Lake  Go.  v.  Young, 

33. 
Wiuship  V.  Conner,  86. 
Winslow  V.  Newlan,  135. 
Wise  V.  Wynn,  274. 
Withers  v.  Moore.  458. 
Wolcott  V.  Hall,  212. 
Wolfe  V.  Railroad  Co.,  120. 
Wood  V.  Bangs,  455. 

V.  Carpenter,  134. 
V.  Insurance  Co.,  47,  265. 
Woodbury  v.  Woodbury's  Estate, 

304. 
Woodcock's  Case,  330,  332. 
Woodman  v.  Dana,  250,  251. 

V.  Segar,  437, 
Woodnoth  v.  Lord  Cobham,  302. 
Woodruff  V.  Whittlesey,  193. 
Woods  V.  Gevecke,  121. 


Woods  V.  Keyes,  297. 

V.  People,  210. 
Woodward  v.  Leavitt,  363. 
Woolacoot  V.  Case,  111. 
Woolway  v.  Howe,  131. 
AVooster  v.  Butler,  337,  338. 
Worthington  v.  Scribner,  372. 
Wray  v.  liailroad  Co.,  41. 
Wright  V.   Cumpsty,  289. 

V.  Hardy,  242. 

V.  Hicks,  91. 

V.  Howard,  97. 

V.  Littler,  326. 

V.  McKee,  195. 

V.  Paige,  211. 

V.  Pindar,  470. 

V.  Tatham,  286,  289. 
Wroe  V.  State,  214,  329,  409. 
W^yman  v.  Gould,  248. 


Yakima  Valley  Bank  v.  McAllis- 
ter, 191. 
Yale  V.  Constock,  290,  293,  296. 
Yancey  v.  Stone,  294. 
Yard  v.  Ford,  85. 
Yardley  v.  Cuthbertson,  247. 
Yates  V.  State,  162. 

V.  Yates,  449. 
Yearsley's  Appeal,  304 
Young  V.  Bennett,  212. 

V.  Dearborn,  296. 

V.  Johnson,  215. 

V.  Makepeace,  233,  451. 
Youngs  V.  Heffner,  87. 


Zevely  v.  AYeimer,  42. 
Zilver  v.  Graves  Co.,  399. 
Zitzer  v.  Merkel,  209. 


INDEX. 


[TH 


E    FIGURES    REFER    TO    PAGES.] 


ACCOUNT  BOOKS, 

see  "Books";    "Shopbook  Rule, 
as  evidence,  301-309. 
entries  inadmissible  under  shopbook  rule,  301,  30-. 

ACCUSED    PERSONS, 

confessions  by,  148-164. 

as  witnesses,  368-371. 

inference  from  failure  to   testify,  368. 

nature   of    privilege,    368. 

waiver  of  privilege,  370. 

ADJECTIVE  LAW, 

meaning  of,  1,  4,  5. 

ADMISSIONS,  .  ,       ^. 

see  "Confessions" ;    "Declarations. 

effect  of.   in  pleadings,  15. 
definition  of,    118-147. 

nature  of,  as  proof,  119,  123,  114. 
by  conduct,  123. 
.      direct,   119.   120,   121. 
indirect,  119,  122. 
of  parties,  124,   126. 
test  of  admissibility,  125. 
of   strangers,    124,    126. 
when  admissible,  124,  12.5. 

because  made  by  authority,  12o. 
in  pleadings,  126. 

in  cases  of  defense,  127. 
after  pleadings  are  amended.  127. 
of   third   persons,   128.  .    -.oa 

admissible  because  of  identity  of  interest,  U8. 
of  prior  owner  of  real  estate,  129. 
of  mortgagor  in  possession,  131. 
of  corporation,   131. 
m'kelv.ev.(2ded.)  (509) 


510  INDEX. 

[The  figures  refer  to  pages.] 

ADMISSIONS— Cont'd.  i 

of  prior  owner  of  personal  property,  131. 

affecting  title  to  personal  property,  132.  ' 

of  prior  owner  of  negotiable  instruments,  132. 

of  personal   property,    132. 
of  parties  in  representative  capacity,  133.  \ 

of  persons   jointly   liable,    133.  ; 

of  busband    and    wife,    137.  ! 

of  agent,  137,  142. 

partners,    138. 

corporate  officers,  138. 

trustees,  138.  ' 

employes,  138. 
of  attorneys,  137. 

pending  negotiations  for  compromise,  140. 
civil  and  criminal  cases,  142-145. 

no  distinction,  142. 

difficult  cases   arising  in  criminal  trials,   143.  j 

conspirators,   143. 

adultery,  144.  ' 

fornication,   144.  i 

wben  one  of  two  has  been  convicted  or  acquitted,  145. 
proof   of   admissions,    146. 
effect   of   admissions,    146. 

distinction  between  admission  and  proof  of  admission,  146. 

ADOPTfcD  WITNESS,  I 

meaning   of,   404. 

ADULTERY, 

character,  evidence  in  cases  of,  205,  209. 
proof  of  by  admissions,  144. 

ADVERSE  PARTY, 

examination  of,  398. 

ADVERSE    POSSESSION, 

presumption  of,  85. 
presumption  from,  85,  95. 

AGE, 

when  a  question  of  pedigree,  275. 
provable  by  hearsay,  281. 

AGENT, 

admissions  of,   137-140. 
declarations  of,  not  res  gestse.  347. 

ALTERATION  OF  INSTRUMENTS,  459^01. 
distinction  between  deed  and  will,  459,  4G0. 
proof  of,   allowable,  459. 
no  presumption  as  to,  460. 


INDEX.  611 

[The  figures  refer  to  pages.] 

AMBIGUITY  IN  WRITING, 
evidence    explaining,    402. 
technical    language,   signs,  etc.,  462. 
subject-matter  obscure,  462. 
language  ambiguous,   463. 
latent  ambiguity,  463. 

ANCIENT    INSTRUMENTS, 

authentication  not  required,  440. 
how   authenticated,   440-442. 

ANCIENT  OWNERSHIP, 

when  hearsay  admissible  to  prove,  269. 

ARBITRATIONS, 

declaration  under  oath  made  in,  admissible,  298. 

ATHEISTS, 

as  witnesses,  252. 

ATTESTING    WITNESSES, 
see  "Authentication." 
kind  of  evidence  given  by,  439. 

ATTORNEYS, 

admissions  of,   137. 

books  of,  admissible  under  shopbook  rule,  307. 

as  witnesses,  363. 

confidential  communications,  when  privileged,  381. 

when  relation  of  attorney  and  client  exists,  383. 

consent  of  client  to  disclosure  of  communication,  386. 

AUTHENTICATION, 

of  entries  in  account  book,  306. 
of  documents,  434-443. 

by  attesting  witness,  435. 

when  attested,  435,  439. 
in  absence  of  attesting  witnesses,  437. 

kind  of  evidence  necessary  in  absence  of  attesting  witnesses,  438. 
nature  of  evidence  of  attesting  witnesses,  439. 
exception  to  rule  requiring,  440, 
when  unattested,  430. 
waived  by  adverse  party,  440,  443. 
when  adverse  party  claims  an  interest,  440,  442. 
when  collaterally  in  issue,  440,  443. 

B 

BANKRUPTCY, 

statements  of  bankrupt  not  properly  res  gestse,  347,  349. 

BEST   EVIDENCE   RULE,   425-434. 
statement  of  rule,  425. 
modern    application   of,   425. 


512  INDEX. 

[The  figures  refer  to  pages.] 

BEST    EVIDENCE  RULE— Cont'd, 
early   meaning   of,   425. 
exceptions,   426. 

application  of  tags,  cards,  etc.,  427,  428. 
not   applicable   to  public  documents,   429. 
wbeu  not  applicable  on  cross-examination,  429. 
when  original  documents  required,  429. 

wben  production  of  original  documents  dispensed  with,  430. 
notice  to  produce,  432. 

BIRTH, 

place  of,  when  question  of  pedigree,  274. 

BODILY  HEALTH, 

state,  how  proved,  189. 

statements  admissible  to  prove,  258. 

BOOKS, 

see  "Documents";    "Entries";    "Public  Documents";    "Shop- 
book  Rule";     "Writings." 
scientific  and  medical   books   as  evidence,  237. 
account  books  as  evidence,  301-309. 
production  of,  434. 

BOOKS  OF  ACCOUNT, 

see  "Shopbook  Rule." 

BOUNDARIES, 

see  "Manor  Boundaries" ;  "Private  Boundaries" ;  "Public  Bound- 
aries." 

BREACH  OF  MARRIAGE  PROMISE, 

proof  of  character,  202. 

BURDEN   OF    PROCEEDING, 
meaning  of,  70. 
effect  of,  70. 
how  shifts,  70. 
example,  71. 
prima  facie  case  in  reference  to,  74,  7G. 

BURDEN  OF   PROOF,  66-77. 

double  sense  in  which  used,  66. 

fixed  by  pleadings,   66. 

does  not  shift,  68,  70. 

effect  of,  on  initiative  in  proof,  69. 

distinguished  from   burden   of   proceeding,   70. 

meaning  of  burden  of  proceeding,  70,  75. 

effect  of,  on  determination  of  issues,  70-73. 

in  criminal  cases,  72. 

effect  of,   on  negative  allegations,  73. 

prima  facie  case  in  connection  with,  74,  76. 

as  to  confession  being  voluntary,  150. 


INDEX.  513 

[The  figures  refer  to  pages.] 


CAPACITY    TO    COMMIT    CRIME, 
presumed,  93,  99. 

presumption  in  case  of  infants  between  seven  and  fourteen,  93.  < 

presumption  in  case  of  infants  under  seven,  99. 

CHANGE,  j 

presumption    against,    107.  'i 

CHARACTER, 

see  "Reputation."  , 

provable  if  a  fact  in  issue,  199.  ' 

a  fact  in  issue  in  libel,  200. 
not  provable  in  action  of  fraud,  202. 
evidence  of,  in  adultery,  203. 

evidence  of,  in  breach  of  marriage  promise,  202.  ! 

for  veracity,  when  provable,  204. 
definition  of,  205. 
how  proved,  205-214. 
and  reputation  distinguished,  205. 
for  veracity,  opinion  when  admissible  to  prove,  210. 
not  provable  by  opinion  evidence,  210. 
how  connected  with  hearsay,  2G6.  I 

CHARACTER  EVIDENCE,  193-215.  | 

general  rule  excluding,  193. 
reason  for  excluding,  193.. 

in  criminal  cases,  196.  ,  | 

in  civil  cases,  194. 

in  negligence  cases',  195.  , 

confined  to  criminal  cases,  197.  I 

kind  of,  admitted,  199.  j 

admissible  where  character  a  fact  in  issue,  199.  I 

in  libel  cases,  200. 

in  action  for  breach  of  promise,  202. 

in  actions  for  fraud,  202.  j 

admissible  where  character  an  evidentiary  fact,  203. 

in  cases  of  rape,  202,  205,  209.  j 

in  cases  of  adultery,  203.  i 

admissible  to  impeach  veracity,  204.  \ 

confined  to  proof  of  reputation,  205.  < 

particular   acts,  not  admissible  generally,  207.  I 

particular  acts,  when  admissible  as,  209. 
order  in  which  introduced,  214. 
in  criminal  cases,  must  first  be  introduced  by  accused,  214.  < 

CHASTITY,  ! 

character  for,  when  provable,  203.  j 

m'kel,v.ev.(2d  ED.) — 33 


514  INDEX. 

(The  figures  refer  to  pages.]  I 

CHILDREN, 

capacity  to  commit  crime,  93,  99. 

as  witnesses,  359.  ' 

CLERGYMEN, 

as  witnesses,  365.  . 

COERCION, 

presumption,  91.  \ 

COMPARISON  OF  HANDS,  ; 

by  expert,  250.  [ 

by  jury,  251. 

COMPROMISE,  j 

admissions  pending,  140.  j 

CONCLUSIVE  PRESUIMPTIONS,   95-99.  '  ] 

illustration,  96-99.  '  1 

of  lost  grant  from  adverse  possession,   96.  i 

CONDUCT, 

not  provable  by  character  evidence,  193. 

CONFESSIONS,  148-164. 

definition,   148,  149.  j 

conditions  of  admissibility  of,  150. 

when  voluntary,  150,  153. 

court  to  determine  whether  voluntary,  152. 

court  will  only  consider  external  influences,  154. 

made  under  judicial  compulsion,  155. 

threats  or  inducements,  155. 

must  be  one  in  authority,  155.  ^ 

must  have  caused  the  confession,  156.  I 

when  confession  procured   in  this  manner  admissible,   157.  i 

when  procured  by  deception,  157.  ; 

when  made  under  influence  of  liquor,  158.  ' 

evidence  in  former  proceeding  as,  159. 

explanation  of,  by  accused,  160.  , 

use  of  partial,  160.  | 

evidence  obtained  as  result  of,  161.  i 

by  conduct,  163.  • 

implied,  163.  | 

CONFIDENTIAL  COMMUNICATIONS,  ' 

between  husband  and  wife,  356. 
attorney  and  client,  381,  386. 

CONFLICTING   PRESUMPTIONS,   116. 

CONSENT   OF   CLIENT. 

to  disclosure  of  communications  with  attorney,  386.  ; 

CONSPIRACY, 

proof  of,  by  admissions,  143. 


INDEX.  515 

[The  figures  refer  to  pages.] 
CONSPIRATORS, 

admissions  of,  143. 

CONTRACT, 

interpretation  of,  for  court.  64. 
character,  when  in  issue  in  actions  of.  203. 

CONTRADICTION, 

of  own  witness  on  facts  in  issue,  400. 

CONTRIBUTORY  NEGLIGENCE, 
presumption  as  to,  104. 

CONVERSION, 

presumption  as  to,  93. 

CORPORATION, 

admissions  of,  138. 

COURT, 

functions  of,  on  trial,  11. 

province  of,  as  to  questions  of  fact,  59-65. 

CREDIBILITY, 
of  witness,  409. 

CRIMES, 

see  "Criminal  Law." 
infamous  crime,  361 

CRIMINAL  LAW, 

see  "Adultery";    "Confessions";    "Conspiracy";   "Dying  Dec- 
larations";   "Fornication";    "Rape." 
accused  as  witness,  see  "Accused  Persons." 

evidence  of  character,  see  "Character";    "Character  Evidence." 
commission  of  crime  sometimes  a  question  for  court,  61. 
burden  of  proof,  66,  153. 

presumption  as  to  crime  committed  by  wife,  91. 
capacity  to  commit  crime,  presumption,  93. 
capacity  of  infant  to  commit  crime,  93. 
admissions  of  conspirators,  143. 
joint  crime,  when  provable  by  admissions,  144. 
effect  of  admissions,  146. 
confessions,  148-164. 

evidence  of  one  crime  not  admissible  to  prove  another,  187. 
proof  of  intent,  189. 
proof  of  malice.  189. 
proof  of  character,  196-199. 
impeaching  evidence,  214. 
declarations  under  oath,  293. 
dying  declarations,  324-333. 
criminal  as  witness,  361. 
meaning  of  infamous  crime,  361. 


516  INDEX. 

[The  figures  refer  to  pages.] 

CRIMINAL    LAW— Cont'd. 

privilege  of  accused,  368-386. 
accused  as  witness,  338. 
self-incriminating  matters.  373. 

CROSS-EXAMINATION,  405-413. 
nature  of  right  of,  405. 
opportunity  for,  absolutely  essential.  407. 
scope  of,  407. 

in  regard  to  credibility,  4(J9. 
leading  questions  on.  410. 
self-contradiction  on.  411. 

CUSTODY, 

of  ancient  document,  what  is  proper,  269. 

CUSTOM, 

presumption  of  legal  origin  of,  97. 

when  may  be  proved  as  part  of  written  agreement,  458. 

D 

DAMAGES, 

as  subject  of  expert  opinion.  243. 

DANGEROUS   CHARACTER, 
of  thing,  how  proved,  181. 

DEATH, 

see  "Dying  Declarations";    "Survivorship." 
presumption  of,  86-90. 
not  a  basis  for  establishing  title,  88. 
no  presumption  as  to  time  of,  88. 
not  necessary  to  admission  of  account  books,  306. 

DECEASED  PERSONS, 

declarations  of,   as  to  public  matters,  339. 

DECEPTION  OF  COURT, 
by  witnesses,  396. 

DECLARATIONS, 

see    "Admissions";     "Confessions";     "Dying    Declarations"; 
"Hearsay." 
of  testator,   as  to  will,  267. 
oral,  admissible  to  prove  pedigree,  275. 
under  oath,  284-299. 

depositions  taken  for  use  on  the  trial.  284. 

statements  made  in  other  proceedings.  284. 

classes  of,  admissible,  285. 

conditions   under   which   admissible,   285. 

disal)ilities  justifying  admission,  285,  291. 

limitation  of  rule.  285. 


INDEX.  oil 

[The  figures  refer  to  pages.] 

DECLARATIONS— Cont'd. 

identity-  of  parties  to  suit.  2SS. 

court  to  determine  whether  identity  suflBcient.  290. 

court  to  determine  whether  disability  sufficient,  292. 

manner  of  proving,  293. 

use  of  in  criminal  cases.  292. 

oral  testimony  admissible  to  prove.  293. 

stenographers'   minutes  admissible  to  prove.  294. 

not  necessary  to  prove  precise  language  of,  295. 

extension  of   rule  admitting.   298. 

made  in  arbitrations,  admissible.  29S. 
in  regular  course  of  business,  299-300. 

»hopbook  rule,  301. 

entries  in  strangers'  books,  309. 
against  interest,  315-323. 

distinguished  from   confessions  and  admissions,  316. 

ground  of  admissibility  of.  316. 

statement  of  general   rule.  315. 

meaning  of  "interest."  318. 

time  of  making.  316. 

death  a  prerequisite  to  admission  of.  320. 

either  written  or  oral,   admissible.  320. 
disparaging   title   admissible,    31S. 
against  interest,   effect  of  admission  of.  318. 

admissibility  a  question  for  c-ourt.  323. 

scope   of   declarations    admitted,    322. 

DEEDS. 

proof  of  alterations  in.  459. 

DEFECTIVE   MACHINERY, 
proof  as  to.  183. 

DEMAND    AND    REFUSAL, 
inference  from.  93. 

DEMURRERS   TO   EVIDENCE.   466-473. 
early  effect  of.  466. 
explanation  of.   4(36. 
when  joinder  in  compelled.  467. 
modern  effect  of,  468. 
American  doctrine  as  to,  471. 
admissibility  of  evidence  not  determined  by,  473. 

DEPOSITIONS. 

for  use  at  trial,  nature  of.  284. 

DESTROYED  WILL. 

hearsay  admissible  to  prove  contents  of,  267. 

DIRECT   ADMISSIONS.    119.    121. 


518  INDEX. 

[The  figures  refer  to  pages.] 

DIRECT  EXAMINATIONS,  396-i05.  ; 

nature  and  purpose  of,   396.  \ 

leading  questions  not  allowable  on.  397. 
except  as  to  preliminary   matters,   398. 
or  on  examination  of  hostile  witness,  398.   ' 
impeachment  not  allowable  on,  400. 
in  cases  of  adverse  or  hostile  witnesses,  -102. 

in  cases  of  adopted  witnesses,  404.  ; 

of  defendant's  witnesses,  404.  | 

DISMISSAL, 

motion  to  dismiss,  472. 

DISQUALIFICATION  OF  WITNESS, 
meaning  of,   367. 

DOCUMENTTS, 

see  "Alteration  of  Instnunents" ;  "Ancient  Instruments"; 
"Authentication";  "Books" ;  "Public  Documents"  ;  "Writ- 
ings." 

authentication  of,  435-443. 

production  of,  434. 

DURATION  OF   LIFE. 

no  presumption  as  to,  89. 

DYING  DECLARATIONS,  324-3.33. 
ground  of  admissibility  of.  324. 

expectation  of  immediate  death  necessary  to  admission  of,  325. 
admissible  even  though  death  does  not  result,  32.5. 
when  inadmissible  though  death  occurs  immediately,  325. 
confined  to  cases  of  homicide,  326. 
how  treated  in  civil  cases,  326. 
by    whom    must    be    made,    327. 
subjects  to  which  may  relate,  329. 

of  persons  incompetent  as  witnesses,  not  admissible,  329. 
form  of.  330. 
admissibility  of,  a  question  for  the  court,  33L 


E 

ENTRIES.   303-315. 

must  be  originals,   303. 

rule  confined  to  shopbooks.  305. 

death  not  essential  to  admissibility,  306. 

authentication   of   in   account  books,   306. 

amount    involved,    307. 

scope  of  proof,  308. 

in  books  of  strangers  to  suit,   309-315. 

development  of  rule  as  to  admission  of,  309. 

disabilities   under   which   admissible,   309,   314. 


IXDEX.  519 

[The  figures  refer  to  pages.] 

ENTRIES— Confd. 

American  doc-trine  as  to,  310. 

English  doctrine   as   to,   310. 

must  be  made  in  regular  course  of  business,  311. 

must  be  original  and  contemporaneous,  312. 

by  whom  may  be  made,  313. 

EVIDENCE, 

place  of,  in  the  law,  L 

form  of.  4,  5. 

defined.   5. 

relation  to  adjective  law.  5. 

rules  of,  in  relation  to  pleadings  and  to  rules  of  substantive  law, 

14. 
obtained  as  result  of  confession,  161. 
of  negligence,    175-1S7. 

collateral  acts  inadmissible  as,   175. 

conduct  of  others  as,  175,  177. 

subsequent   acts   of   precaution   as.   178. 

other  acts  of  similar  character  as.  179. 

effect  of  same  act  on  other  persons,  181. 

dangerous   character   of   thing   as,   ISl. 
of  character,  excluding  rule,  193. 

confined  to  criminal  cases,   197. 
affecting  contents  of  document,  451— 1(>4. 
demurrers  to,   466-473. 

EVIDENTIARY  FACTS, 

meaning  of.  5-S. 

function  of  court  in  relation  to,  11. 

determination  of.   13. 

manner  of  proving.   13. 

EXAMINATION  OF   WITNESS,   3S7-3SS. 
order   of   proceeding   with,   3S7. 
ordinary  method  of,  387. 
when  regular  order  of  changed.  388. 
exclusion  of  witnesses  from  courtroom,  3S9. 
rule  requiring  oral  testimony.  390. 
refreshing  memory  on,  391-396. 
deception  of  court  by  witness,  396. 
direct  examination.   396-405. 
cross-examination.  405-413. 
re-examination.    413. 
purpose  of.  413. 

EXCLUDING    RULES, 
in  general.  167-169. 
matters  of  slight  importance.  167. 
character  evidence.  193. 
opinion  evidence.  218. 


520  INDEX.  ] 

[The  figures  refer  to  pages.] 
EXCLUSION, 

of  parties  from  courtroom,  390. 

of  witnesses  from  courtroom,  389.  = 

EXECUTIVE    ACTS.  j 

as  subject  of  judicial  notice,  140-142. 

EXPECTATION   OF   DEATH, 

in  relation  to  dying  declarations,  325.  ; 

EXPERT,  ; 

qualification  of,  228.  \ 

testimony  as  to  facts,  meaning  of,  230. 

testimony  as  to  handwriting,  448.  I 

EXPERT    EVIDENCE,  i 

what  constitutes,  222,  230. 

EXPERT  OPINION  EVIDENCE,  228-252. 
reason   of   admission,   228. 
distinguished  from  ex,pert  testimony  as  to  facts,  230. 

classes  of,  231. 

as  to   facts,   2,32.  ' 

as  to  foreign  law,  233. 

scientific  questions,   234.  .  ' 

field  for  widening.  236. 
on  what  subjects  admissible,  236. 
based  on  .scientific  and  medical  books,  237. 

how   contradicted,   238.  | 

upon  what  evidentiary  facts  based,  239.  ^ 

grounds   of,    admissible,    239.  ^ 

hypothetical  question,  240.  ' 

how   stated,   241-243.  j 

damage  as  subject  of,  243.  | 

sanity  as  subject  of,  246-248.  1 

handwriting  as  subject  of,  249-2.52.  .  ^ 


F 

FACTS, 

judicially  noticed  axiomatic,  25. 

governmental    concern,    31-42. 

relating  to  phenomena  of  nature,  42-44. 

relating  to  lives  of  mankind,  44-53. 
and    opinion    distinguished,    216. 
proved  by  experts.  230-235. 
described  in  writing,  proof  of,  427,   428. 

FIRES, 

railway,  proof  of,  183-187. 

by  evidence  of  other  fires,  183. 

use  of  safer  appliances  by  other  roads.  183. 


INDEX.  521 

[The  figures  refer  to  pages.] 

FOREIGN  LAW, 

as  subject  of  expert  testimony,  232,  233. 

FOREIGN    MINISTERS, 
as  witnesses,  367. 

FORMAL  ADMISSIONS,  16,  17. 

distinguished  from  admissions  provable  in  evidence,  16. 

FORNICATION, 

proof  of,  by  admissions,  144. 

FRAUD, 

action  for,  character  not  provable  in,  202. 
how    proved    by    statements,    2U2. 

FUNCTIONS   OF   COURT, 
on  trial,  11-14. 

G 

GENEALOGY, 

distinguished   from    pedigree,    274. 

GENERAL   REPUTATION, 

see  "Reputation." 

GEOGRAPHICAL   FACTS, 

as  subject  of  judicial  notice,  33. 

GOOD    CHARACTER, 

of  accused  admissible,  196. 

GOVERNMENTAL   ACTS, 

as  subject  of  judicial  notice,  33  38. 

GOVERNORS, 

and  state  officers  as  witnesses,  367,  372. 

GRAND  JURORS, 

as  witnesses,  362. 

H 

HABEAS   CORPUS, 

as  remedy  in  case  of  denial  of  .privilege  to  witness,  378. 

HANDWRITING, 

how  proved,   439,  444-451. 

by  experts,  249-252. 

qualifications  of  witness  to.  249. 

by  comparison  of  hands  by  expert,  250. 

genuineness  of,  444. 

by  one  having  received  and  acted  on  writings,  444,  447. 

by  witness  having  seen  person  write,  444,  445. 

by  expert,  444,  448. 

by  comparison  of  hands  by  jury,  449-451. 


522  INDEX. 

[The  figures  refer  to  pages.] 

HEARSAY.    253-349. 

general  rule   excluding,   254. 
development  of  rule  against,  255. 
apparent  exceptions  to  rule,  258-266. 

statements    in    issue,    258. 

statements  which  are  circumstantial  evidence,  258. 

as  to  mental  state,  260. 

as  to  bodily  health,  261. 

statements  of  testator,  261. 

market  value,  263. 

reputation,  236. 
real  exceptions  to  rule  against,  267-349. 

difBculty  of  other  proof  the  basis  of.  267. 

of  testator  as  to  contents  of  will,  267. 

concerning  ancient  ownership,  269. 

as  to  pedigree,  271-281. 

age,  person's  own  statement  of,  hearsay,  281. 

matters  of  a  public  nature,  282. 

statements  having  special  reliability,  283. 
under  oath,  284-299. 
made  in  regular  course  of  business,  299-300. 

shopbook  rule,  301. 

entries  in  stranger's  books.  309. 

declarations   against   interest,  315. 

dying  declarations,  324, 
res   gestae,   343-349. 

HISTORY, 

basis  of  judicial  notice,  51.  . 

HOMICIDE,  I 

see   "Dying  Declarations."  , 

HOSTILE  WITNESSES,  ; 

manner  of  examination  of.  398.  j 

HUSBAND,  ^ 

presumption  as  to  crime  committed  by  wife,  91. 
declarations  to  prove  pedigree,  275. 

dying  declarations  of,   329.  ' 

and    wife,    confidential    communications    between,    329. 
or  wife  of  party,  as  witness,  329.  1 

HYPOTHETICAL  QUESTIONS,  240-243.  ■' 

general  form  of,  240.  .; 

statement  of  facts  included  in,  241.  I 


INDEX.  523 

[The  figures  refer  to  pages.] 


IDENTITY   OF  INTEREST, 

as  affecting  admissions,  128. 

IMPEACHMENT   OF   WITNESS, 
when  allowed,  204. 

not  allowable  in  case  of  own  witness,  400. 
on   direct   examination,   400. 
in  a  case  of  adopted  witness,  404. 

IMPLIED  CONFESSIONS,  1G3. 

IMPRESSIONS, 

not  opinion,  220,  236. 

INCAPACITY  FOR  CRIME, 
when  presumed,  93,  99. 

INDIRECT  ADMISSIONS,  119,  122. 

INFAMOUS  CRIMES, 
meaning  of,  361. 
how  affect  competency  of  witnesses,  361. 

INFANTS, 

capacity  of,  to  commit  crime,  93,  99. 
children  as  witnesses,  359. 

INFERENCE, 

relation  to  evidence,  6-8. 

as  basis  of  presumptions,  83. 

INFIDELS,  I 

as  witnesses,  352. 

INNOCENCE, 

presumption  as  to,  113. 

INSANE  PERSONS, 
as  witnesses,  359. 

INSANITY, 

see  "Sanity." 

INSOLVENT  PERSONS, 

statements  of,  not  properly  admissible  as  res  gestre.  347,  d4y. 

INSTANTANEOUS  CONCLUSIONS   OF  THE  MIND,  221. 

INSTRUCTIONS, 

directing  verdict,  472. 

INTENT, 

presumption  of,  from  acts,  lOG. 
proof  of,  by  collateral  acts,  189. 
admission  of  statements  to  prove,  258. 


524  INDEX.  ' 

[The  figures  refer  to  pages.] 
INTEREST, 

declarations  against,  315-323. 

meaning  of,  316.  i 

INTERPRETATION  OF   WRITINGS,  462-464.  I 

signs  and  abbreviations,  462.  I 

tecbnical  language,  462.  ' 
obscure  language,  462. 
uncertain  and  indefinite  language,  403. 

latent  ambiguity,   463.  ' 

INTOXICATION,  ! 

effect  on  confessions,  158. 

i  I 

JUDGE,  , 

questions  for  court  and  jury,   89.  | 

as  witness,  364.  J 

JUDICIAL  COMPULSION, 

in  respect  to  confessions,  155. 

must  be  one  in  authority,  155. 

confession    a  direct  result   of.  156.  ; 

when  confession  admitted,  157.  .' 

JUDICIAL   NOTICE,    18-53. 

not  properly  a  part  of  law  of  evidence.   18. 

reason  for  general  doctrine,  18,  19,  28.  29.  .; 

direct  and  indirect  facts  recognized,    19,  21. 

effect  on  burden  of  proof,  19,  21. 

effect   on   pleadings,   24. 

result,  20. 

illustration,  20,  21. 

how  far  knowledge   of  fact  is   imputed   to  parties,  20,  21.  i 

doctrine  both  mandatory  and  permissive,  25. 

by  common  law,  26-28,  31.  i 

by   statute,  26-29.  i 

reason  of,  31-33.  ] 

facts  which  may  be  judicially  noticed,  23,  44—53.  ! 

facts  which  must  be  judicially  noticed,  27. 
sources  of  court's  information,  22. 
as  related  to  pleading,  24. 
axiomatic  or  self  evident  facts,  25. 

universal  facts,  25,  29.  ] 

facts  of  governmental  concern,   26,  29,  32.  .' 

seals  and  signatures  of  judges  and  notaries,  31.  j 

constitution,  32. 

geographical  boundaries,  33. 

legislative  acts,  33-38. 

public  statutes,  35.  i 

'i 
i 


INDEX.  525 

[The  figures  refer  to  pages.] 

JUDICIAL  NOTICE— Cont'd. 

private  and  municipal,  not  noticed,  35. 

United  States  court  rule,  36. 

state  court  rule,  37-38. 

practice  and  procedure  of  courts,  38,  40. 

acts  of  executive  officers.   40.   42. 
facts   relating  to  phenomena  of  nature,    42-44. 

physics,  43. 

mathematics,  43. 

scientific  principles,  44,  48. 

laws  of  physiology,  43,  44,  46. 

effects  of  drugs  on  hinnan  system.  47. 

illustrations,    46-49. 
facts  relating  to  lives  of  mankind,  44-53. 

customs,  49-51. 

language,  49. 

money,  50. 

history.   50.   52. 

almanacs,   43,  44,  51. 

division  of  time,  43,  44. 
matters  of  common  notoriety,  44,  45. 

as  meaning  universal    recognition.   45,  49. 

may  be  local  recognition.  26. 

tendency  of  courts.  26,  45,  46. 

facts  courts  have  refused  to  notice,  52. 

JURORS, 

as  witnesses,  262. 

JURY, 

province  of  court  and  .iury.  54.  55.  , 

development  of,   224. 
original  character  of,  224. 

JUXTAPOSITION  OF  HANDS,  449-451. 

K 

KNOWLEDGE  OF  LAW, 

presumption  as   to.    116. 
state  of,  how  proved,   189. 


LAND. 

proof  of  value  of.   171. 

LATENT   AMBIGUITY, 

in  writings,  463. 


526  INDEX, 

[The  figures  refer  to  pages.] 
LAW, 

definition  of,  1,  2. 

of  evidence,  meaning  of,  1. 

origin  of,  8-10. 

relation  of,  to  conduct  of  trial.  11-14. 
presumption  as  to  law  of  another  state,  108-112. 

genex'al  rule,  108. 

common  law,  109. 

statute  law,  110. 

general  rule,  112. 
presumption  as  to  knowledge  of,  116. 

LEADING   QUESTIONS, 
definition  of,  396. 

in  reference  to  preliminary  matters,  396, 
on  direct  examination.  .396. 
in  case  of  hostile  witnesses,  398. 
on   cross-examination,  410. 

LEGALITY, 

presumption   of,   112. 

LEGAL  RELEVANCY, 
meaning  of,  166. 

LEGISLATIVE  ACTS, 

the  subject  of  judicial  notice,  33-38. 

LEGITIMACY, 

presumption  of,  90. 

LETTERPRESS    COPY, 
when  admissible,  433, 

LIBEL, 

character  in  issue  in,  200. 

evidence  of  particular  acts  showing  bad  character  in  cases  of, 

209. 
reputation  as  to  act  charged  in  libelous  statement  inadmissible, 

212. 

LIVING  MEMORY, 
period    of,  97. 

LOGICAL   RELEVANCY, 

relation  to  law  of  evidence.  13. 
as  basis  of  admissibility,  16.5,  166. 
distinction  between,  and  legal  relevancy,  166. 

LOST  GRANT, 

presumption  of,  96. 

LOST  INSTRUMENTS, 
how  proved,  267.  4.30. 
what  satisfactory  proof  of  loss  or  destruction,  431. 


INDEX.  527 

[The  figures  refer  to  pages.] 
LOST  WILL, 

how  contents  proved  by  hearsay,  267. 

LUNATICS, 

as  witnesses,  359. 

M 

MAGISTRATE, 

confessions  before,  156. 

MAILING    LETTER, 

presumption  as  to,   94. 

MAIN  FACTS  IN  ISSUE, 

function  of  court  to  determine  what  are,  11-14. 
court  not  to  decide,  58-60. 

MALICE, 

other  criminal  acts  admissible  to  prove,  189. 

MALICIOUS  PROSECUTION, 

question  of  fact  and  law  in  cases  of,  55. 

MANOR   BOUNDARIES, 

in  England,  proof  of,  336. 

MAP, 

illustrative  evidence,  419. 

MARKET   VALUE, 

in  connection  with  hearsay,  263. 
particular  sales  admissible  to  prove,  263. 
public  offers  admissible,  264. 
private  offers  inadmissible,  264. 

MATTER, 

misleading,    167. 

of  opinion,   meaning  of,  215. 

of  fact,  meaning  of,  215. 

of  public  or  general  interest,  333-343. 

hearsay  admissible  to  prove,  333. 

reason  for  admissibility  of  hearsay,  .333. 

connection  of,  with  matters  .iudicially  noticed,  333. 

qualification  as  to  proof  of,  334. 

classification,  334. 

distinction    between    public    interest    and    general    interest, 
335. 

public  boundaries  proved  by  hearsay  as,  335. 

private   boundaries,   rule   as   to,   336. 

by  whom  declarations  must  be  made,  338. 

general  reputation  admitted  to  prove,  339. 

specific  declarations  admitted  to  prove,  339. 

public  documents  and  books,  340. 

reason  for  admission  of,  341. 

books  must  be  proved  public  as  a  condition  precedent,  343. 


528  INDEX. 

[The  figures  refer  to  pages.] 
MATTERS, 

see  "Self-Incriminating  Matters." 
of   Governmeuta!   concern   when   judicially   noticed,   31^2. 
relating  to  phenomena  of  nature,  42-44. 
relating  to   lives   of  mankind,   44-53. 

MEDICAL   BOOKS, 

used  in  connection  with  expert  testimony,  237. 

MEMORANDA, 

to  refresh  memory,  391-396. 

MENTAL  STATE, 
how  proved,   189. 

character   evidence  admissible  to  prove,  203. 
statements  admissible  to  prove,  261. 

METHODS, 

of  determining  facts  in  issue,  16,  17. 

MINUTES  OP  MEETINGS, 

how   proved,   428. 

MISLEADING   MATTERS, 

reason  for  exclusion  of,  1G7. 
rules  for  exclusion  of,  167. 

MOTION, 

to  direct  verdict,   effect  of,  472. 
to  dismiss,  effect  of,  472. 

MOTIVE, 

proved  by  collateral  acts,  189. 


N 

NATURAL  CONSEQUENCES, 

of  acts,  presumption  of  intent  as  to,  106. 

NATURALLY    INCAPACITATED    PERSONS, 

as  witnesses,  359. 

NEGATIVE  ALLEGATION, 

see  "Burden  of  Proof." 
effect  on  burden  of  proof,  73. 
classes  of,   74. 
no  exception  to  general  rule,  75. 

NEGLIGENCE, 

see   "Fires." 
rules  relating  to,   175,   177. 
fact  and  law  in,  62. 

proof  of,  by  conduct  of  others,  175,  176. 
subsequent  acts  of  precaution  as  evidence,  173. 
in   railway  fires,   183-187.  -^ 

not  provable  by  character  evidence,  195.  \ 


INDEX.  529 

[Tlie  figures  refer  to  pages.] 

NEGOTIABLE   INSTRUMENTS, 

presumption   from  possession,   90. 
admissions  of  prior  owner  of,  132. 

NOTICE, 

judicial,  15-53. 

contents  of,  how  proved,  426. 

to  produce,  431. 

OATH, 

declarations  under.  284-299. 

theory  of,  as  affecting  witnesses,  353. 

OBSCURE  MATTER, 

in  writings,   evidence  explaining,  462. 

OFFERS, 

of  compromise  not  admissible,  140. 

when  admissible  to  prove  market  value,  264. 

OFFICERS, 

public  officers  as  witnesses,  2G7,  272. 

OPINION,   210-252. 

not  admissible  to  prove  character,  210. 

definition  of.  215. 

evidence,  definition  of,  215. 

distinguished    from    fact,    215. 

general  excluding  rule,   218. 

apparent  exceptions  to  rule  excluding,  220. 

impressions  of  the  mind  not,  221,  223. 

reason   for  admission  of,  in  certain  cases,  224. 

conditions  under  which  admitted,  225. 

of  expert,  228. 

questions  raised  by  offer  of  expert,  228. 

to  prove  damage,  243. 

to  prove  handwriting,  444-451. 

ORAL  EVIDENCE   RULE,  451^61. 
reason  for,  451,  454. 
application  of,   453. 
in   case  of   collateral   agreements,   456. 
when  validity   questioned.  455. 
when    not   applicable,    455,   462. 
where  writing   is  a  memorandum,  457. 
custom,  458. 

in  cases  where  writings  in  issue  collaterally,  458. 
alterations,  4.59. 

m'kelv.ev.(2d  ED.) — 34 


530  INDEX. 

[The  figures  refer  to  pages.] 
ORAL  TESTIMONY, 

required  of  witnesses,  390. 

ORIGINAL  DOCUMENTS, 

when  required  as  evidence,  429. 

P 

PAROL  EVIDENCE, 

see  "Oral   Evidence  Rule." 
to  vary  written  instruments,  451-461. 

PARTIES, 

admissions  of,  133. 

to  suit,  as  witnesses,  355. 

PECUNIARY  INTEREST, 

in  suit,  no  disqualification  of  witness,  358. 

PEDIGREE,  271-281. 

hearsay  admissible  to  prove,  271. 

reason   for  rule   admitting  hearsay  to  prove,   271. 

reputation  admissible  to  prove,  271. 

distinction  between   genealogy  and,  273. 

age,  place  of  birth,  death,   etc.,  when  questions  of,  274. 

degree   of  relationship  necessary,  273,  276. 

kinds  of  declarations  admissible  to  prove,  275. 

relationship   of  declarant,   how  proved,  279. 

whether  main  or  evidentiarj'  fact,  provable  by  hearsay,  280. 

meaning  of  ante  litem  mortem.  280. 

time  of  making  declarations,  280. 

PERSONAL  PROPERTY. 

presumption  of  ownership,  90. 
admissions  of  prior  owner  of,  131. 

PHOTOGRAPHS, 

as  illustrative  evidence.  419. 

not  substitutes  for  original  documents,  429. 

PHYSICIANS. 

books  of,  admissible  under  shopbook  rule,  307. 
as  witnesses,  365. 

PHYSIOLOGY, 

facts  in,  proved  by  experts,  233. 

PLEADINGS, 

functions  of,  14,  15,  16. 
admissions  in,  126. 

POSSESSION, 

of  personal  property  as  basis  of  presumption,  90. 


INDEX.  531 

[The  figures  refer  to  pages.] 

PRELIMINARY    INVESTIGATIONS, 

declarations  under  oath  made  on,  admissible,  298. 

PRELIMINARY  QUESTIONS, 
of  fact  for  court,  68. 
whether   confession    voluntary,    152. 

PRESIDENT, 

as  a  witness,  366. 

PRESUMPTIONS, 
definition,  78. 
in  general,  78. 

as  meaning  inference,   79.  80,  81. 
as  meaning  rule  of  law,  79,  82. 
classes  of,  82. 
origin  of,  82. 
development  of,  82. 
conclusive  meaning  of,  83. 
how  connected  with  prima  facie  case,  83. 
prima  facie,  meaning  of,  83. 
when  conclusive,   84-86. 
arising  from  adverse  possession,  9.5. 
of  death,  86-90. 

of  time  of  death,  no  presumption,  88. 
of  ownership  of  personal  property,  90. 
of  legitimacy,  90. 

of  coercion  in  case  of  wife  committing  crime,  91. 
of  capacity  to  commit  crime,  93.  99. 
of  conversion   from  demand  and  refusal,  93. 
of  lost  grant,  96. 
of  legal  origin  of  custom,  97. 
incapacity  to  commit  crime,  99. 
of  capacity  to  commit  rape,  99. 
of  conversion.  93. 
of  receipt  of  letter,  94. 
spurious,  99-116. 
of  sanity,  101. 

of  contributory  negligence,  104. 
of  intent.  106. 
against  change,  107. 
of  law  of  another  state,  108-112. 

common  law,  109. 

statute  law,  110. 

general  rule,  112. 
of  regularity  and  legality,  112. 
of  innocence,  113. 
of  survivorship,  114. 
of  Ivuowledge  of  law,  116. 
conflicting,  116. 


532  INDEX. 

[The  figures  refer  to  pages.J 

PRIMA  FACIE  CASE, 

effect  of,  on  burden  of  proof,  76. 
on  burden  of  proceeding,  70. 
in  relation  to  presumptions,   83. 

PRIMA  FACIE  PRESUMPTIONS, 

illustration,  83. 

PRINCIPAL   AND   AGENT, 

see    "Agent."' 
admissions  of  agent,  137-140. 
declarations  of  agent,  347. 

PRINCIPAL    FACT, 
meaning  of,  5-8. 

PRIVATE    BOUNDARIES, 

how  proved  in  America,  336. 

PRIVILEGE, 

of   accused,    366-386. 
of   witness,   366-380. 

PRIVILEGED   MATTERS,   372-386. 
state  secrets,  372. 
what  included  in,  373. 

privilege  extends  to  all  witnesses,  371,  373. 
reason  for  holding  privileged,  373. 
self-incriminating  matters,   373-381. 
privilege   extended   to   matters    incriminating   husband   or   wife, 

375. 
how  privilege  as  to  claimed,  376. 
waiver  of  privilege  as  to,  376. 
remedy  in  case  of  denial  of  privilege,  378. 
inference  from  exercise  of  privilege,  378. 
how  determined  what  are,  380. 
professional  communications,  381-386. 

PRIVILEGE    OF    WITNESS, 
meaning   of,   366. 
to  what  extends,  .366. 

PROCLAMATIONS, 

as  subjects  of  judicial  notice,  29,  40. 

PRODUCTION, 

of  books  and  papers,   how  compelled,  43. 

PROFESSIONAL    COMMUNICATIONS, 

how  privileged,  381. 

relation  of  attorney  and  client,  .383. 

what  included  in,  384.  I 

inference  from  exercise  of  privilege.   380.  J 

consent  of  client  to  disclosure  of,  .380.  | 

proof  by  attesting  witnesses,  when  i-equired,  435.  !' 

when  excused,  437. 


] 


iNDE^r.  533 

[The  ngures  refer  to  pages.] 
PROVINCE, 

of  court  and  jury,  54,  55. 

PUBLIC  BOUNDARIES, 

hearsay  admissible  to  prove,  334. 
English  rule  as  to,  33(3. 

PUBLIC   DOCUMENTS,   340. 

how  contents  proved,  see  "Hearsay." 
PUBLIC   INTEREST, 

matters  of,  333-343. 

PUBLIC    MATTERS, 

provable  by  hearsay,   282. 

PUBLIC   STATUTES, 
how   proved,   430. 


QUAKERS, 

as   witnesses,   3.53. 

QUESTIONS, 

for  determination  at  trial,  .54. 
of  law,  definition,  55. 

province  of  judge  as  to,  55-58. 

how  arise,  55. 

examples,   56. 

in  cases  of  negligence,  56. 

confused  with  questions  of  fact,  58. 
of  fact,  definition,  .58. 

preliminary,  for  court,  58. 

example  of,  improperly  left  to  jury,  60. 

in  cases  of  negligence,  62. 


p 

RAILROADS, 

see   "Fires." 
fires  set  by  locomotives.  183-187. 

RAPE. 

capacity  to  commit,  presumption  of.  99. 

character  evidence  in  cases  of,  202,  205. 

where  particular  acts  admissible  to  show  bad  character,  209. 

statements  of  complainant  not  res  gestae,  347,  348. 

REAL    ESTATE. 

admissions  of  prior  owner  of,  129. 

REAL   PARTY    IN   INTEREST, 
admissions  of,  136. 


534  INDEX. 

[The  figures  refer  to  pages.] 

RECEIPT, 

as    evidence,    464. 

RECEIPT   OF   LETTER, 
as   a    presumption,   94. 

RE-EXAMINATION    OF    WITNESSES, 
meaning  of,  413. 
purpose  of,  413. 

REFRESHING    MEMORY,    391-396. 
by  what  sort  of  pqijers,  391. 
in  what  cases  allowable,  391. 
effect  of  submission  of  paper  for  purpose  of,  392. 
where  writings  used  for  are  circumstantial  evidence,  393. 
admissibility  of  writings  used  for,  395. 

"REGULAR   COURSE   OF   BUSINESS," 
meaning  of,  311. 

REGULARITY, 

presumption  of,  112. 

RELEVANCY, 

logical  and  legal,  166. 

"RELEVANT," 

meaning  of  term,  165. 

RELIGIOUS    QUALIFICATIONS, 

of    witnesses,   353-355. 

REPUTATION, 

see    "Character." 
as  evidence  of  character,  205. 
how  .proved,  211. 

as  to  commission  of  act,   inadmissible,  212. 
in  distant  place,  not  admissible,  213. 
how  connected  with  hearsay,  266. 

RES  GEST^, 

not  gromid  for  admission  of  declarations  disparaging  title,  321. 

conditions    of    admissibility    of,    343. 

meaning  of,  343. 

declarations  which  are  part  of,  343-345. 

ground  of  reliability,  344. 

must  be  contemporaneous,  345. 

matters  wrongfully  treated  as,   347. 

agent's  statements  not  included  in,  347. 

statements  of  insolvent  persons  as  to  insolvency  not  included  in, 

347,  349. 
statements  of  complainants  in  rape  cases  not  included  in,  347, 

348. 

RES  INTER  ALIOS   ACTA,  169. 


INDEX.  535 

[The  figures  refer  to  pages.] 

ROMAN    CATHOLICS, 
as  witnesses,  354. 

RULES, 

of   evidence,   secondary   to   pleadings   and   rules   of   substantive 

law,  14. 
of  equivalents,  presumptions  as,  83. 
of  exclusion,  place  of,  in  law  of  evidence,  167. 


s 

SALES, 

of  land  as  evidence  of  value,  171. 

admissible  on  question  of  market  value,  263. 

SANITY, 

in  respect  to  burden  of  proof,  76,  77. 

presumption  as  to,  101. 

in  criminal  and  civil  cases,  102,  103. 

as  subject  of  expert  testimony,  246. 

bow  proved,  246. 

as  subject  of  expert  opinion  evidence,  246-248. 

SCIENTIFIC  BOOKS, 

how  used  in  connection  with  expert  testimony,  237. 

SECONDARY    EVIDENCE, 
when  admissible,  430-433. 
degrees  of,  433. 

SELF-INCRIMINATING    MATTERS,    373-381. 

privilege  as  to,  nature  of,  373. 

what  included  in,  373. 

matter  incriminating  husband,  375. 

how    privilege    as    to    claimed,    376. 

waiver  of  privilege  as  to,  376. 

remedy  for  denial  of  privilege,  378. 

inference  from  exercise  of  privilege,  378. 

who  to  determine  whether  matter  privileged,  380. 

SEVEN  YEARS'   ABSENCE   RULE, 
see  "Death." 

SHOPBOOK  RULE,  301-309. 

nature  and  development  of,  301. 

English  rule.  302. 

American  doctrine,  302. 

entries  must  be  original  and  contemporaneous,  303. 

meaning   of    shopbooks.    305. 

entries  must  be  authenticated,  306. 

death  oath  essential,  303. 

no  disabilities  necessary,  306. 


536  INDEX. 

[The  figures  refer  to  pages.] 

SHOPBOOK  RULE— Cont'd. 

restricted  as  to  amount  involved,  307. 

sometimes  extended  to  attorneys'  and  physicians'  boolis,  307. 

restricted  as  to  nature  of  items,  308. 

SIGNS  AND  ABBREVIATIONS, 

when  meaning  of  noticed  by  court,  49. 
evidence  explaining,  462. 

SOVEREIGN, 

as  a  witness,  366. 

SPURIOUS  PRESUMPTIONS,  9&-116. 
in  general,  99-101. 
sanity,  101-104. 
intent,  106. 

STATEMENTS, 

see  "Admissions";   "Confessions";    "Declarations";  "Res  Gestae." 

STATE  SECRETS, 

of  what  consist,  372. 

witnesses  privileged  from  testifying  to.  372. 
on  what  grounds  privileged,  372. 

what  witnesses  may  determine  question  of  privilege  for  them- 
selves, 372. 

STATUTES. 

as  subject  of  judicial  notice,  35. 
proving  foreign  statutes  by  experts,  233. 
public  statutes,  how  proved.  4.30. 

STENOGRAPHERS'  MINUTES, 

admissible  to  prove  declarations  under  oath,  293. 

SUBPCENA  DUCES  TECUM, 
how  used,  434. 

SUBSTANT^IVE  LAW, 

meaning  of,  1. 
beginnings  of,  2. 
development,  3,  4. 

SUFFICIENCY, 

of  evidence  to  go  to  jury,  a  question  of  law,  59,  60. 

SURVIVORSHIP. 

presumption  as  to,  114,  115. 

T 

TECHNICAL  LANGUAGE. 

in  writings,  how  explained,  462. 

TESTATOR, 

statements  of,  when  admissible,  261. 
declarations  of,  as  to  contents  of  will,  267. 


INDEX.  537 

[The  figures  refer  to  pages.] 
THREATS, 

effect  of,  on  confession,   156,  157. 

TIME  OF   BIRTH, 

when  a   question  of  pedigree,  274. 

TREATIES, 

as  subjects  of  judicial  notice,  29,  40. 

TRIAL, 

functions  of  court,   8. 
province  of  judge  and  jury,  54,  55. 
examination  of  witness,  387—1:14. 
exclusion  of  witness,  389. 
exclusion  of  parties,  390. 
examination  of   witness,  396-414. 


u 

ULTIMATE   FACT, 

meaning  of,  5-8. 

UNDUE  INFLUENCE, 

statements  of  testator,  when  admitted  to  prove,  261. 

UNIMPORTANT  AND    MISLEADING   MATTERS, 

exclusion  of,  167. 

difficulty  of  classification,  167-169. 

basis  of  rule  excluding,  167. 

res  inter  alios  acta,  169. 

other  sales  as  evidence  of  value,  171. 

conduct  of  others  as  evidence  of  negligence.  175. 

matters  admissible   for  enlightenment  of  jury,   177. 

subsequent  acts  of  precaution  as  evidence  of  negligence,  178. 

effect  of  similar  acts  of  negligence,  179. 

effect  of  same  act  on  others,  181. 

dangerous  or  defective  character  of  things,  181-185. 

proof  of  kinds  of  appliances  used  by  others,  186. 

commission  of   other   crimes,   187. 

when  a  series  of  crimes  are  committed,  admissible,  188. 
when  admissible  to  prove  intent,  189. 

USAGE, 

see  "Custom."' 

V 

VALUE, 

of  land,  proof  of  other  sales,  171. 
expert  evidence  as  to,   243. 
market  value,  263. 

VENDOR  AND  PURCHASER, 
see  "Sales";    "Value." 


538  INDEX. 

[The  figures  refer  to  pages.] 

VERACITY, 

of  witness,  how  impeached,  204. 

VERDICT, 

effect  of,  burden  of  proof  on,  75. 
motion  to  direct,  472. 


w 

WAIVER, 

of  privilege  of  accused,  368. 
of  privilege  by  witness,  376. 

WIFE, 

see  "Husband." 
committing  crime  in  presence  of  husband,  91. 
admissions  of,  137. 

declarations  of,  to  prove  pedigree,  276. 
dying  declarations  of,  329. 

WILLS, 

declarations  of  testator,  261-267. 
contents  of,  provable   how,  267. 
proof  of  alteration  in,  459. 

WITNESSES, 

see  "Authentication";  "Cross-Examination";  "Direct  Ex- 
amination"; "Examination  of  Witnesses";  "Leading 
Questions";  "Re-examination  of  Witnesses";  "Refreshing 
]Memory." 

character  of,  for  veracity,  provable,  204. 

how  to  testify,  220 

hypothetical   questions  to,   240-243. 

in    general,  350-386. 

position  of,  in  early  law,  350. 

early  rules  excluding  certain  persons  as,  350. 

infidels  and  atheists  as,  352. 

Quakers  as.  353. 

Roman  Catholics  as,  354. 

parties  to  suit  as,  355. 

husband  or  wife  of  party,  356. 

persons  pecuniarily  interested  in  suit  as,  358. 

naturally  incapacitated  persons  as,  359. 

criminals  as,  361. 

grand  jurors  as,  362. 

jurors  as,   362. 

special  cases  of  disqualification,  3G2. 

legal  advisers  as,  363. 

clergymen  as,  365. 

physicians  as,  365. 


INDEX.  .  539 

[The  figures  refer  to  pages.] 

WITNESSES— Cont'd. 

president  as  a  witness,  366. 

governors  and  state  officers  as,  367,  372. 

privilege  of,  distinguished  from  disqualification,  367. 
sovereign  as  a  witness,  366. 
foreign  ministers,  367. 
accused  persons  as,  368-371. 
inference  from  failure  to  testify,  367. 
waiver  of  privilege  by,  370. 
privilege  of,  as  to  state  secrets,  372, 

as  to  particular  subjects,  371-388. 

self-incriminating  matters,  373. 

professional  communications,  381. 
exclusion  of.  from  court  room.  389. 
refreshing  memory  of,  391-396. 
deception  of  court  by,  396. 
direc-t  examination,  396-405. 
contradiction  of  own   witness,  400. 
attesting,  435-439. 

WRI11NGS,  415-466. 

see  "Alteration  of  Instruments";   "Books." 
double  character  of,  415. 
as  operative  things,  416. 
physical  objects  as  evidence,  416. 

illustrative,   417. 

extent  rule  is  carried,  418. 
illustrative  evidence,  418. 
maps,  diagrams,  and  photographs,  419. 
pictorial  evidence  as  original  evidence,  420. 

reason,  420. 

when  admitted,  421. 

materiality,  422. 

accessibility,  424. 
best  evidence  rule,   425-434, 

secondary   evidence  of,   when  not   admissible,  429. 
lost  and  destroyed,  how  proved,  430. 
when  admissible,  430. 
notice  to  produce,  432. 
in  hands  of  adverse  party,  432,  434. 
admission  of  contents  of,  effect,  432. 
in  hands   of  third  person,  432,  434. 
production  of,  how  compelled,  434. 
attestetl,   how   authenticated,  435-439. 
authentication  of,  435-443. 

exceptions  to  rule  requiring  proof  of  execution  of,  440,  442-444. 
vmattested.  how  authenticated,  440. 


540  INDEX. 

[The  figures  refer  to  pages.] 

WRITINGS— Cont'd. 

ancient,   how  authenticated,  440-441. 
collaterally  in  issue,  how  authenticated.  443. 
under  which  adverse  party  claims  interest,  442. 
handwriting  of,  how  proved,  111  151. 
varying  terms  of,  454-459. 
alterations   in,  459-461. 
interpretation  of,  4t>2-464. 
receipts,  464. 


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1907.     721  pages.    ?3.7.j  delivered. 

By  WM.  L.  CLARK,  Jr., 
Author  of  "Criminal  Law,"  "Criminal  Procedure,"  and  "Contracts." 

Second  Edition:  By  FRANCIS  B.  TIFFANY. 


TABLE   OF  CONTENTS. 


Chap. 

1. 
2. 

3. 

4. 

5. 

G. 

7. 

8. 

9. 
10. 
11. 
12. 
13. 
14. 
15. 


Of  the  Nature  of  a  Corporation. 

Creation  and  Citizenship  of  Corporations. 

Effect  of  Irregular  Incorporation. 

Relation  between  Corporation  and  its  Promoters. 

Powers  and  Liabilities  of  Corporations. 

Powers  and  Liabilities  of  Corporations. 

Powers  and  Liabilities  of  Corporations. 

The  Corporation  and  the  State. 

Dissolution  of  Corporations. 

Membership  in  Corporations. 

Membership  in  Corporations. 

Membership  in  Corporations. 

Management  of  Corporations— Officers  and  Agents. 

Rights  and  Remedies  of  Creditors. 

Foreign  Corporations. 

Appendix. 


CG539-0 


(£Iai*U's  Criminal  £atp. 

1902.     517  pages.    $3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  a  "Handbook  of  the  Law  of  Contracts." 

Second  Edition:   By  FRANCIS  B.  TIFFANY. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Defiuitiou  of  Crime. 

2.  Criminal  Law. 

3.  Classification  of  Crimes. 

4.  The  Mental  Element  in  Crime. 

5.  Persons  Capable  of  Committing  Crime. 

6.  Parties  Concerned. 

7.  The  Overt  Act. 

8.  Offenses  against  the  Person. 

9.  Offenses  against  the  Person. 

10.  Offenses  against  the  Habitation. 

11.  Offenses  against  Property. 

12.  Offenses  against  the  Public  Health,  Morals,  etc. 

13.  Offenses  against  Public  Justice  and  Authority. 

14.  Offenses  against  the  Public  Peace. 

15.  Offenses  against  the  Government. 

16.  Offenses  against  the  Law  of  Nations. 

17.  Jurisdiction. 

18.  Former  Jeopardy. 


C6559-7 


(£lark's  Criminal  Procebutc. 

1895.     665  pages.    $3.75  delivered. 
By  WM.  L.  CLARK,  Jr., 

Author  of  a  "Haudbook  of  Criminal  Law,"  and  a  "Handbook  of 

Contracts." 


TABLE    OF   CONTENTS. 

Chap. 

1.  Jurisdiction. 

2.  Apprehension  of  Persons  and  Property. 

3.  Preliminary  Examination,  Bail,  and  Commitment. 

4.  Mode  of  Accusation. 

5.  Pleading— The  Accusation. 

6.  Pleading — The  Accusation. 

7.  Pleading— The  Accusation. 

8.  Pleading — The  Accusation, 

9.  Pleading— The  Accusation. 

10.  Pleading  and  Proof. 

11.  Motion  to  Quash. 

12.  Trial  and  Verdict. 

13.  Proceedings  after  Verdict. 

14.  Evidence. 

15.  Habeas  Corpus. 


C655^S 


Crosipcll  on  (f  xeciitors  anb 
Ctbmtntstrators. 

1S97.     G96  pages.     $3.75  delivered. 

By  SIMON  GREENLEAF  CROSWELL, 

Author  of  "Electricity,"  "Patent  Cases,"  etc. 


TABLE    OF   CONTENTS. 

Chap. 

Part  1.— DEFINITIONS  AND  DIVISION  OF  SUBJECT. 

1.  Definitions  and  Division  of  subject. 

Part  2.— APPOINTMENT  AND  QUALIFICATIONS. 

2.  Appointment  in  Court. 

3.  Place  and  Time  of  Appointment  and  Requisites  Therefor. 

4.  Who  maj'  Claim  Appointment  as  Executor. 

5.  Who  may  Claim  the  Right  to  Administer. 

6.  Disqualifications  for  the  Office  of  Executor  or  Administrator. 

7.  Acceptance  or  Renunciation. 

8.  Proceedings  for  Appointment  of  Executors  and  Administra- 

tors. 

9.  Special  Kinds  of  Administrations. 

10.  Foreign  and  Intei-state  Administration. 

11.  Joint  Executors  and  Administrators. 

12.  Administration  Bonds. 

Part  3.— POWERS  AND  DUTIES. 

13.  Inventory — Appraisement — Notice  of  Appointment. 

14.  Assets  of  the  Estate. 

15.  Management  of  the  Estate. 

16.  Sales  and  Conveyances  of  Personal  or  Real  Assets. 

17.  Payment  of  Debts  and  Allowances — Insolvent  Estates. 

18.  Payment  of  Legacies. 

19.  Distribution  of  Intestate  Estates. 

20.  Administration  Accounts. 

Part  4.— TERMINATION  OF  OFFICE. 

21.  Revocation  of  Letters — Removal — Resignation. 

Part  5.— REMEDIES. 

22.  Actions  by  Executors  and  Administrators. 

2.3.  Actions  against  Executors  and  Administrators. 

24.  Statute  of  Limitations — Set-off. 

25.  Evidence  and  Costs. 


C65.59-9 


(£aton  on  ^tiuity. 

1901.    734  pages.    $3.75  delivered. 

By  JAMES  W.  EATON. 

Editor   3d    Edition   Collier   on   Bankruptcy.   Co-Editor   American 

Bankruptcy  RejKjrts,  Eaton  and  Greene  s  Negotiable 

Instniments  Law,  etc. 


TABLE    OF   CONTENTS. 

Oriain  and  History.  _ 

General  Principles  Governing  the  Exercise  of  Equity  Jurisdiction. 

Maxims. 

Penalties  and  Forfeitures. 

Priorities  and  Notice. 

Bona  Fide  Purchasers  Without  Notice. 

Equitable  Estoppel. 

Election. 

Satisfaction  and  Performance. 

Conversion  and  Reconversion. 

Accident. 

Mistake. 

Fraud. 

Equitable  Property. 

Implied  Trusts. 

Powers.  Duties,  and  Liabilities  of  Trustees. 

Mortgages. 

Equitable  Liens. 

Assignments. 

Remedies  Seeking  Pecuniary  Relief. 

Speiiific  Performance. 

Injunction.  . 

Partition.  Dower,  and  Establishment  of  Boundaries. 

Reformation.  Cancellation,  and  Cloud  on  Title. 

Ancillary  Remedies. 


co.:Mi>-io 


Sdkv  on  (Squity. 

1895.     4G3  pages.     $3.75  delivered. 
By  NORMAN  FETTER. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Nature  and  Definition  of  Equity. 

2.  Principles  Defining  and  Limiting  Jurisdiction. 

3.  The  Maxims  of  Equity. 

4.  The  Doctrines  of  Equity. 

5.  The  Doctrines  of  Equity. 

6.  The  Doctrines  of  Equity. 

7.  Grounds  for  Equitable  Relief. 

8.  Property  in  Equity — Trusts. 

9.  Property  in  Equity — Mortgages,  Liens,  and  Assignments. 

10.  Equitable  Remedies. 

11.  Equitable  Remedies. 

12.  Equitable  Remedies. 

13.  Equitable  Remedies. 

14.  Reformation,  Cancellation,  and  Quieting  title. 

15.  Ancillary  Remedies. 


CG5.J9-11 


©arbncr  on  IDills. 

1903.     72G  pages.     ?3.75  delivered. 

By  GEORGE  E.  GARDNER, 

Professor  iu  the  Boston  University  Law  School. 


TABLE    OF   CONTENTS. 

Chap. 

1.  History  of  \Yills— Introduction. 

2.  Form  of  Wills. 

3.  Nuncupative,  Holographic,  Conditional  Wills. 

4.  Agreements  to  Make  Wills,  and  Wills  Resulting  from  Agree- 

ment. 

5.  Who  may  be  a  Testator. 

6    Restraint  upon  Power  of  Testamentary  Disposition-Who  may 
be  Beneficiaries— What  may  be  Disposed  ot  by  \\  ill. 

7.  Mistake,  Fraud,  and  Undue  Influence. 

8.  Execution  of  Wills. 

9.  Revocation  and  Republication  of  Wills. 

10.  Conflict  of  Laws. 

11.  Probate  of  Wills. 

12.  Actions  for  the  Construction  of  Wills. 

13.  Construction  of  Wills— Controlling  Principles. 

14.  Construction— Description  of  Subject-Matter. 

15.  Construction— Description  of  Beneficiary. 

16.  Construction— Nature  and  Duration  of  Interests. 

17*.  Construction— Vested  and  Contingent  Interests— Remainders 
— Executory  Devises. 

18.  Construction— Conditions. 

19.  Construction— Testamentary  Trusts  and  Powers. 

20    Legacies  —  General  —  Specific  —  Demonstrative  —  Cumulative 

20.  Leg_a^i;^^^^^^  ,^^^  void  -  Abatement  -  Ademption  -  Advance- 

ments. 

21.  Legacies  Charged  upon  Land  or  Other  Property. 

22.  Payment  of  the  Testator's  Debts. 

23.  Election. 

24.  Rights  of  Beneficiaries  Not  Previously  Discussed. 


C6559-12 


(Bcorge  on  Partncrsl^tp. 

1897.     61G  pages.     $3.75  delivered. 


By  WILLIAM    GEORGE. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Definition  and  Establishment  of  Relation. 

2.  Kinds  of  Partnersliips  and  Partners. 

.3.  Characteristic  Features  of  Partnerships. 

4.  Implied  Rights  and  Liabilities  Inter  Se. 

5.  Articles  of  Partnership. 

6.  Rights  and  Liabilities  as  to  Third  Persons. 

7.  Actions  Between  Partners. 

8.  Actions  Between  Partners  and  Third  Persons. 

9.  Dissolution. 

10.  Limited  Partnerships. 

11.  Joint-Stock  Companies. 


CG559-13 


(BIcnn's  3ntcntat{onal  taw. 

1895.    478  pages.    $3.75  delivered. 

By  CAPT.  EDWIN  F.  GLENN, 
Acting  Judge  Advocate,  United  States  Army. 


TABLE    OF   CONTENTS. 

INTRODUCTIOX. 

Chap. 

1.  Persons  in  International  Law. 

2.  The  Commencement  of  States — Fundamental  Rights  and  Du- 

ties. 

3.  Territorial  Troperty  of  a  State. 

4.  Territorial  Jurisdiction. 

5.  Jurisdiction  on  the  High  Seas  and  Unoccupied  Places. 

6.  The  Agents  of  a  State  in  International  Relations. 

7.  Intervention. 

8.  Nationality. 

9.  Treaties. 

10.  Amicable  Settlement  of  Disputes. 

11.  International  Relations  in  War. 

12.  Effects  of  War — As  to  Persons. 

13.  Effects  of  War— As  to  Property. 

14.  Postliminium. 

15.  Military  Occupation. 

10.  Means  of  Carrying  on  Hostilities. 

17.  Enemy  Character. 

18.  Non-Hostile  Relations. 

19.  Termination  of  War. 

20.  Of  Neutrality  in  General. 

21.  The  Law  of  Neutrality  between  Belligerent  and  Neutral  States. 

22.  Contraband. 

23.  Blockade. 

24."  Visit  and  Search,  and  Right  of  Angary. 
Appendix. 


C0.V)9-14 


^ale  on  Bailments  anl!) 
Carriers. 

1896.  675  pages.     $3.75  delivered. 
By  WM.  B.  HALE. 


TABLE    OF    CONTENTS. 

Chap. 

1.  lu  General. 

2.  Bailments  for  Sole  Benefit  of  Bailor. 

3.  Bailments  for  Bailee's  Sole  Benefit. 

4.  Bailments  for  Mutual  Benefit — Pledges. 

5.  Bailments  for  Mutual  Benefit — Hiring. 

6.  Innkeepers. 

7.  Carriers  of  Goods. 

8.  Carriers  of  Passengers. 

9.  Actions  against  Carriers. 


CU55D-15 


^ale  on  Damaq,C5. 

1896.     4TG  pages.     §;3.75  delivered. 

By  WM.  B.  HALE, 

Author  of  "Biiilmeuts  and  Carriers.' 


TABLE    OF   CONTENTS, 

Chap. 

1.  Definitions  and  General  Principles. 

2.  Nominal  Damages. 

3.  Compensatory  Damages. 

4.  Bonds,  Liquidated  Damages  and  Alternative  Contracts. 

5.  Interest. 
G.  Value. 

7.  Exemplary  Damages. 

8.  Pleading  and  Practice. 

9.  Breach  of  Contracts  for  Sale  of  Goods. 

10.  Damages  in  Actions  against  Carrier. 

11.  Damages  in  Actions  against  Telegraph  Companies. 

12.  Damages  for  Death  by  Wrongful  Act. 

13.  Wrongs  Affecting  Real  Property. 

14.  Breach  of  Marriage  Promise. 


C6559-16 


^aU  on  Corts. 

1890.     G3G  pages.     $3.75  delivered. 

By  WM.  B.  HALE. 

Author  of  "Bailments  and  Carriers,"  etc. 


TABLE    OF   CONTENTS. 

Cliap. 

1.  General  Nature  of  Torts. 

2.  Variations  in  Normal  Right  to  Sue. 

3.  Liability  for  Torts  Committed  by  or  with  Others. 

4.  Discharge  and  Limitation  of  Liability  for  Torts. 

5.  Remedies  for  Torts — Damages. 

6.  Wrongs  Affecting  Freedom  and  Safety  of  Person. 

7.  Injuries  in  Family  Relations. 

8.  Wrongs  Affecting  Reputation. 

9.  Malicious  Wrongs. 

10.  Wrongs  to  Possession  and  Property. 

11.  Nuisance. 

12.  Negligence. 

13.  Master  and  Servant. 


CG559-17 


^opktns  on  Kcal  Property 

1896.     589  pages.     $3.75  delivered. 
By  EARL  P.  HOPKINS,  A.  B.  LL.  M. 


TABLE   OF   CONTENTS. 

Chap. 

1.  What  is  Real  Property. 

2.  Tenure  and  Seisin. 

3.  Estates  as  to  Quantity— Fee  Simple 

4.  Estates  as  to  Quantity — Estates  Tail. 

5.  Estates  as  to  Quantity — Conventional   Life   Estates. 
G.  Estates  as  to  Quantity— Legal  Life  Estates. 

7.  Estates  as  to  Quantity— Less    than    Freehold. 

8.  Estates  as  to  Quality  on  Condition — on  Limitation. 

9.  Estates  as  to  Quality— Mortgages. 

10.  Equitable  Estates. 

11.  Estates  as  to  Time  of  Enjoyment— Future  Estates. 

12.  Estates  as  to  Number  of  Owners- Joint  Estates. 

13.  Incorporeal  Hereditaments. 

14.  Legal  Capacity  to  Hold  and  Convey  Realty. 

15.  Restraints  on  Alienation. 
m.  Title. 


CG559-18 


§ugt?es  on  Clbmiralty. 

1901.    504  pages.     $3.75  delivered. 


By  ROBERT  M.  HUGHES,  M.  A. 


TABLE    OF   CONTENTS. 

The  Origin  and  History  of  the  Admiralty,  and  its  Extent  in  the 
United  States. 

Admiralty  Jurisdiction  as  Governed  by  the  Subject-Matter. 

General  Average  and  Marine  Insurance. 

Bottomry  and  Kespuudentia  ;  and  Liens  for  Supplies,  Repairs,  and 
Other  Necessaries. 

Stevedores'  Contracts,  Canal  Tolls,  and  Towage  Contracts, 

Salvage. 

Contracts  of  Affreightment  and  Charter  Parties. 

Water  Carriage  as  Affected  by  the  liarter  Act  of  February  13,  1803. 

Admiralty  Jurisdiction  in  Matters  of  Tort. 

The  Right  of  Action  in  Admiralty  for  Injuries  Resulting  Fatally. 

Torts  to  the  Property,  and  Herein  of  Collision. 

The  Steering  and  Sailing  Rules. 

Rules  as  to  Narrow  Channels,  Special  Circumstances,  and  General 
Precautions. 

Damages  in  Collision  Cases. 

Vessel  Ownership  Independent  of  the  Limited  Liability  Act. 

Rights  and  Liabilities  of  Owners  as  Affected  bv  the  Limited  Lia- 
bility Act. 

The  Relative  Priorities  of  Maritime  Claims. 

A  Summary  of  Pleading  and  Practice. 


APPENDIX. 


4. 

5. 
G. 

7. 


Including: 


1.  The  Mariner's  Compass. 

2.  Statutes  Regulating  Navigation, 

(1)  The  International  Rules. 

(2)  The  Rules  for  Coast  and  Connecting  Inland  Waters. 

(3)  The  Dividing  Lines  between  the  High  Seas  and  Coast  Wa- 

ters. 

(4)  The  Lake  Rules. 

(.5)  The  Mississippi  Valley  Rules. 

(G)  The  Act  of  xMarch  3,  1899,  as  to  Obstructing  Channels. 

3.  The  Limited  Liability  Acts,  Including: 

(1)  The  Act  of  March  3,  1851,  as  Amended. 

(2)  The  Act  of  June  2G,  1884. 
Section  941,  Rev.  St.,  as  Amended,  Regulating  Bonding  of  Ves- 
sels. 

Statutes  Regulating  Evidence  in  the  Federal  Courts. 

Suits  in  Forma  Pauperis. 

The  Admiralty  Rules  of  Practice. 


C6559-19 


QutjI^^s  on  5*-'^^'i'^il 
3un5btction  anb  procedure. 

1904.    G34  pages.    $3.75  delivered. 

By  ROBERT  M.  HUGHES,  of  the  Norfolk  Bar, 

Author  of  "Hughes  ou  Admiralty."  and  Lecturer  at  the  George 
Washiugtou  University  Law  School. 


TABLE    OF    CONTENTS. 

Chap. 

1.  Introduction— What  it  Comprehends. 

2.  The  District  Court— Its  Criuiinal  Jurisdiction  and  Practice. 

3.  Same — Continued. 

4.  The    District     Court— Criminal     Jurisdiction— Miscellaneous 

Jurisdiction. 

5.  The  District  Court— Bankruptcy. 
G-S.  Same — Continued. 

9.  The  District  Court— Miscellaneous  Jurisdiction. 

10.  The  Circuit  Court— Original  Jurisdiction. 

11-12.  Same— Continued. 

13.  The  Circuit  Court— Jurisdiction  by  Removal. 

14-15.  Same — Continued. 

10  The  Circuit  Court— Jurisdiction  by  Removal— Original  Juris- 
diction of  the  Supreme  Court— Other  Minor  Courts  of  Orig- 
inal Jurisdiction. 

17.  Procedure  in  the  Ordinary  Federal  Courts  of  Original  Juris- 
diction— Courts  of  Law. 

IS.  Procedure  in  the  Ordinary  Federal  Courts  of  Original  Juris- 
diction— Courts  of  Equity. 

19.  Same — Coutinued. 

20.  Appellate  Jurisdiction— The  Circuit  Court  of  Appeals. 

21.  Appellate  Jurisdiction— The  Supreme  Court. 

22.  Procedure  on  Error  and  Appeal. 

The  U  S  Supreme  Court  Rules  and  the  Rules  of  Practice  for  the 
Courts  of  Equity  of  the  United  States  are  given  in  an  appendix. 


CG559-20 


3ngersoll  on  Public 
Corporations. 

19(>i.     738  pages.    $3.75  delivered. 

By  HENRY  H.  INGERSOLL,  LL.  D., 

Dean  of  tlie  University  of  Tennessee  Scliool  of  Law. 


TABLE    OF    CONTENTS. 


Part  1.— QUASI  CORPORATIONS. 


Chap. 


1.  Nature,  Creation,  Classification. 

2.  Quasi  Corporations — Liabilities,  Elements,  Counties,  Property, 

etc. 

3.  Same — Continued. 

4.  Same — Coutiuued. 

Part  2.— MUNICIPAL  CORPORATIONS. 

5.  Municipal    Corporations. 

0.  Their  Creation — How — By  What  Bodies — Subject  to  What  Re- 
strictions, etc. 

7.  Their  Alteration  and  Dissolution. 

8.  The  Charter. 

9.  Legislative  Control. 

10.  Proceedings  and  Ordinances. 

11.  Officers,  Agents,  and  Employes. 

12.  Contracts. 

13.  Improvements. 

14.  Police  Powers  and  Regulations. 

1.5.  Streets,  Sewers,  Parks,  and  Public  Buildings. 
IG.  Torts. 

17.  Debts,  Funds,  Expenses,  and  Administration. 

18.  Taxation. 

19.  Actions. 

Part  3.— QUASI  PUBLIC  CORPORATIONS. 

20.  Quasi  Public  Corporations. 

21.  Railroads. 

22.  Electric  Companies. 

2.3.  Water  and  Gas  Companies. 

24.  Other  Quasi  Public  Cori)orations. 


C6559-21 


3a(3garb  on  (Lorts. 

1S95.    2  vols.    1307  pages.    $7.50  delivered. 

By  EDWIN  A.  JAGGARD,  A.  M.,  LL.  B., 
Professor  of  the  Law  of  Torts  in  Minnesota  University  Law  School. 


TABLE    OF    CONTENTS. 

Part  1.— IN  GENERAL 
Chap. 

1.  General  Nature  of  Torts. 

2.  Variations  in  the  Normal  Right  to  Sue. 

3.  Liability  for  Torts  Committed  by  or  with  Others. 

4.  Discharge  and  Limitation  of  Liability  for  Torts. 

5.  Remedies. 

Part  2.— SPECIFIC  WRONGS. 

6.  Wrongs  Affecting  Safety  and  Freedom  of  Persons. 

7.  Injuries  in  Family  Relations. 

8.  Wrongs  Affecting  Reputation. 

9.  Malicious  Wrongs. 

10.  Wrongs  to  Possession  and  Property. 

11.  Nuisance. 

12.  Negligence. 

13.  Master  and  Servant. 

14.  Common  Carriers. 


Ct>55i)-: 


-.fu-^-i 


2HcKebey  on  €r>tbencc. 

1907.     540  pages.     $3.75  delivered. 

By  JOHN  JAY  McKELVEY,  A.  M.,  LL.  B., 

Author  of  "Common-Law  Pleading,"  etc. 

Second  Edition. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Introductory. 

2.  Judicial  Notice. 

3.  Questions  of  Law  and  Questions  of  Fact. 

4.  Burden  of  Proof. 

5.  Presumptions. 

6.  Admissions. 

7.  Confessions. 

8.  Matters  Excluded  as  Unimportant,  or  as  Misleading,  though 

Logically  Relevant. 

9.  Character.  ' 

10.  Opinion  Evidence. 

11.  Hearsay. 

12.  Witnesses. 

13.  Examination  of  Witnesses. 

14.  Writings. 

15.  Demurrers  to  Evidence. 


C6559-23 


Zlorton  on  Bilb  anb  Hotcs. 

1900.    GOO  pages.     $3.75  delivered. 

By  PROF.  CHARLES  P.  NORTON. 
Third  Edition:    By  Francis  B.  Tiffany. 


TABLE    OF    CONTENTS. 


Chap. 
1. 


Of  Negotiability  so  far  as  it  Relates  to  Bills  and  Notes. 

2.  Of  Negotiable  Bills  aud  Notes,  and  their  Formal  and  Essen- 

tial Requisites. 

3.  Acceptance  of  Bills  of  Exchange. 

4.  Indorsement. 

5.  Of  the  Nature  of  the  Liabilities  of  the  Parties. 
G.  Transfer. 

7.  Defenses  as  against  Purchaser  for  Value  without  Notice. 

8.  The  Purchaser  for  Value  without  Notice. 

9.  Of  Presentment  and  Notice  of  Dishonor. 
10.  Checks. 

Appendix. 


CG559-24 


5I?ipman  on  <£ommon£aw 

1895.     615  pages.  $3.75  delivered. 

By  BENJAMIN  J.  SHIPMAN,  LL.  B. 
Second  Edition. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Forms  of  Action. 

2.  Forms  of  Action. 

3.  Tlie  Parties  to  Actions. 

4.  The  Proceedings  in  an  Action. 

5.  Ttie  Declaration. 

6.  The  Production  of  the  Issue. 

7.  Materialty  in  Pleading. 

8.  Singleness  or  Unity  in  Pleading. 

9.  Certainty  in  Pleading. 

10.  Consistency  and  Simplicity  in  Pleading. 

11.  Directness  and  Brevity  In  Pleading. 

12.  Miscellaneous  Rules. 
Appendix. 


CG559-25 


3F?tpman  on  €quttij 

1897.     644  pages.     $3.75  delivered. 

By  BENJ.  J.  SHIPMAN,  LL.  B., 

•  Author  of  "SMpman's  Common-Law   Pleading." 


TABLE    OF   CONTENTS. 

Chap. 

1.  Equity  Pleading  in  General. 

2.  Parties. 

3.  Proceedings  in  an  Equitable  Suit. 

4.  Bills  in  Equity. 

5.  The  Disclaimer. 
G.  Demurrer. 

7.  The  Plea. 

8.  The  Answer. 

9.  The  Replication. 


C6559-2G 


5mttl?'s  (Slcmcntary  taw. 

1896.     367  pages.     .$,3.75  delivered. 

BY  WALTER  DENTON  SMITH, 

Instructor  in  the  Law  Department  of  the  University  of  Michigan. 


Chap. 


TABLE    OF    CONTENTS. 


Part  1.— ELEMENTARY  JUIIISPRUDENX'E. 


1.  Nature  of  Law  and  the  Various  Systems. 

2.  Government  and  its  Functions. 

3.  Goveniinent  in  the  United  States. 

4.  The  Unwritten  Law. 
.J.  Equity. 

0.  The  Written  Law. 

7.  The  Authorities  and  their  Interpretation. 

8.  Persons  and  Personal  Rights. 
0.  Pror>erty. 

lU.  Classification  of  the  Law. 


Part  2.— THE  SUBSTANTIVE  LAW. 

11.  Constitutional  and  Administrative  Law. 

12.  Criminal   Law. 

13.  The  Law  of  Domestic  Itclatioiis. 

14.  Corporeal  and  Incorjiorcal  Hereditaments. 

15.  Estates  in  Real  Property. 
10.  Title  to  Real  Property. 
17.  Personal  Property. 

IS.  Succession  After  Death. 
10.  Contracts. 

20.  Special  Contracts. 

21.  Agency. 

22.  Commercial  Associations. 

23.  Torts. 

Part  3.— THE  AD.JECTIVE  LAW. 

24.  Remedies. 

2.5.  Courts  and  their  Jurisdiction. 

26.  Procedure. 

27.  Trials. 


C6550  :i7 


(Liffanij  on  Ctcscncij. 

1903.    009  pages.    $3.7.")  aolivortHl. 

By  FRANCIS  B.  TIFFANY. 
Author  of  "Doath  by  Wrongful  Act."  -Law  of  Sales,"  etc. 


Chap. 


TABLE    OF    CONTENTS. 


Part  1.— IN  GENERAL. 


1    Iiitroductorv — Pofinitions. 

2.'  Creation  of  the  Kolation  of  Principal  and  Agent-Appointment. 

^    Snne  (oontinuei.1) — Ratification.  . 

4   What    vAs  Can  be  Done  by  Agent-IUegality-Capaoity  of 

l.-ji-tios— Joint  Principals  and  Agents. 
o.  Delegation  by  Agent— Subagents. 
G.  Termination  of  the  Relation. 
7.  Construction  of  Authority. 

P-irt  •■> -RIGHTS  AND  LIAIULTTIES  P>ETWEEN  PRINCIPAL 

AND   THIRD    PERSON. 

S.  Liability  of  Principal  to  Third  Person— Contract. 

9  Same  ^continucdl. 

10  Viliui>^'«ions  bv  Asrcnt — Notice  to  Agent.  ,    -,  . 

It  LlabJlitv  of  Principal  to  Third  Person-Torts  and  Crimes. 

12.  Liability  of  Third  Person  to  Principal. 

Part  -> -RIGHTS  AND  LI.VBILITIES  BETWEEN  AGENT  AND 
laito.     luuiii.  THIRD   PERSON. 

13.  Liability  of  Agent  to  Third  Person  anoluding  panics  to  con- 

tracts^. 

14.  Liability  of  Third  Person  to  Agent. 

p.„-t  4 -RIGHTS  AND  LIAIULITIES  PL^rWEEN   PRINCIPAL 

AND  AGKNT. 

ir>    Duties  of  Agent  to  Principal. 
1g!  Duties  of  Principal  to  Agent. 
Appendix. 


c-or.r.9--js 


Ctffany  on  Persons  anb 
Domestic  Jlelations. 

1896.    589  pages.     .$3.75  delivered. 
By  WALTER  C.  TIFFANY. 


TABLE   OF   CONTENTS. 


Chap. 

Part  1.— HUSBAND  AND  WIFE. 

1.  Marriage. 

2.  Persons  of  the  Spouses  as  Affected  by  Coverture. 

3.  Rights  in  Property  as  affected  by  Coverture. 

4.  Contracts,   Conveyances,  etc.,  and  Quasi-Contractual   Obliga- 

tions. 

5.  Wife's  Equitable  and  Statutory  Separate  Estate. 

6.  Antenuptial  and  Postnuptial  Settlements. 

7.  Separation  and  Divorce. 

Part  2.— PARENT  AND  CHILD. 

8.  Legitimacy,  Illegitimacy,  and  Adoption. 

9.  Duties  and  Liabilities  of  Parents, 

10.  Rights  of  Parents  and  of  Children. 

Part  3.— GUARDIAN  AND  WARD. 

11.  Guardians  Defined — Selection  and  Appointment. 

12.  Rights,  Duties,  and  Liabilities  of  Guardians. 

13.  Termination  of  Guardianship — Enforcing  Guardian's  Liability. 

Part   4.— INFANTS,   PERSONS    NON    COMPOTES    MENTIS, 

AND   ALIENS. 

14.  Infants. 

15.  Persons  Non  Compotes  Mentis  and  Aliens. 

Part  5.— MASTER  ^i^^D    SERVANT. 
IG.  Creation  and  Termination  of  Relation. 


CG5.59-29 


Ctffanij  on  Sales. 

1908.     534  pages.     $3.75  delivered. 

By  FRANCIS  B.  TIFFANY,  A.  B.,  LL.  B. 
(Harvard.) 

Author  of  "Tiffany  on  Death  by  Wrongful  Act." 
Second  Edition. 


TABLE    OF   CONTENTS. 
Chap. 

1.  Formation  of  the  Contract. 

2.  Formation  of  the  Contract— Under  the  Statute  of  Frauds. 

3.  Effect  of  the  Contract  in  Passing  the  Troperty— Sale  of  Spe- 

cific Goods. 

4.  Effect  of  the  Contract  in  Passing  the  Property— Sale  of  Goods 

not  Specific. 

5.  Fraud,  and  Retention  of  Possession. 
0.  Illegality. 

7.  Conditions  and  Warranties. 

8.  Performance. 

9.  Rights  of  Unpaid  Seller  against  the  Goods. 
10.  Action  for  Breach  of  the  Contract. 

Appendix:     Sales  Act— English  Sale  of  Goods  Act. 


CGo.j9-30 


LAW  LIBRAsRY 


•*' 


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